Spencer v. Loewenstein

• Decision Date: 20 July 1922
• Docket Number: 1039
• Citation: 207 P. 1098,29 Wyo. 31
• Parties: SPENCER ET AL. v. LOEWENSTEIN
• Court: Wyoming Supreme Court

207 P. 1098

29 Wyo. 31

SPENCER ET AL. v. LOEWENSTEIN

No. 1039

Supreme Court of Wyoming

July 20, 1922

APPEAL from District Court, Uinta County, JOHN R. ARNOLD, Judge.

Action by George Spencer and another, doing business under the firm name of Spencer & Bird, against Fred Loewenstein. Judgment for plaintiffs, and defendant appeals. On motion to dismiss the appeal.

Appeal dismissed.

Reuel Walton of Evanston, for appellant.

Louis Kabell, Jr., of Evanston, for respondent.

KIMBALL Justice. BLUME, J., concurs. POTTER, Ch. J., being ill, did not sit.

OPINION

KIMBALL, Justice.

This case has been brought here by direct appeal from the judgment entered April 29, 1920. The respondents move to dismiss the appeal for the reason, among others, that the notice of appeal was not served and filed within ten days from the entry of the judgment as required by Section 6402, Wyo. C. S 1920. The notice was not served and filed until September 7 1920, and it is therefore apparent that the appeal from the judgment has not been taken within the time required by statute, and must be dismissed.

A motion for a new trial, filed May 7, 1920, was denied August 30, 1920, but, as was held in Mitter v. Black Diamond Coal Co., 27 Wyo. 72, 191 P. 1069, 193 P. 520, the filing of that motion did not extend the time for serving and filing the notice of appeal from the judgment. In the Mitter case on rehearing (27 Wyo. 78, 193 P. 520 and 206 P. 152), because of the peculiar circumstances then brought to its attention, the court felt justified in considering the motion for a new trial as a motion under Chapter 370, Wyo. C. S. 1920 to vacate the judgment, and the order denying it as an appealable order, the notice of appeal in that case reciting that the appeal was taken from that order as well as from the judgment. The dismissal of the appeal from the judgment was not affected by the rehearing. The reasons which induced the court to entertain the appeal, for limited purposes, on the rehearing in the Mitter case, do not appear in the case at bar. Here the record shows that there had been a trial--a judicial investigation of an issue of fact; and the motion for a new trial, asking a re-examination of that issue, was clearly the ordinary motion applying for that relief under Section 5870. It was filed at the same term and within ten days after the judgment was rendered, as required by section 5872. There was nothing in its...