Spriggs v. Goodrich, 2678

• Decision Date: 19 July 1955
• Docket Number: No. 2678,2678
• Citation: 285 P.2d 1103,74 Wyo. 185
• Parties: James W. SPRIGGS and Hazel Spriggs, d/b/a Jim's Market, Plaintiffs and Respondents, v. Kay GOODRICH and Mrs. Kay Goodrich, Defendants, United States of America, Intervener and Appellant.
• Court: Wyoming Supreme Court

Page 1103

285 P.2d 1103

74 Wyo. 185

James W. SPRIGGS and Hazel Spriggs, d/b/a Jim's Market, Plaintiffs and Respondents, v. Kay GOODRICH and Mrs. Kay Goodrich, Defendants United States of America, Intervener and Appellant.

No. 2678.

Supreme Court of Wyoming.

July 19, 1955.

John F. Raper, Jr., U. S. Dist. Atty., C. N. Bloomfield, Asst. U. S. Dist. Atty., Cheyenne, for appellant.

John J. Spriggs, Sr., John J. Spriggs, Jr., Lander, for respondents.

HARNSBERGER, Justice.

This is an appeal from an order denying intervener's motion to vacate an order which dismissed its petition in intervention.

Plaintiffs had obtained a money judgment against the defendants in an action at the commencement of which a writ of attachment issued and the holder of the proceeds of a sale of defendants' sheep was garnisheed. The garnishee reported the money was held by him for the account of defendants and an agency of the United States, the garnishee having been notified the sheep had been mortgaged to that governmental agency. The United States was permitted to intervene for the purpose of asserting its right to the money by virtue of the mortgage but when the matter was heard its claim was dismissed. Plaintiffs then had execution upon its judgment and a second garnishment was had upon the same garnishee and for the same monies. This time, however, the garnishee reported that prior to the service of the second garnishment he had been notified the defendants had assigned their entire interest in the funds to the same agency of the United States which had previously claimed as a mortgagee. Again the United States intervened, setting up the assignment, and claiming its prior right to the money.

Plaintiffs denied the claim, set up other defenses, and issue was joined between plaintiffs and the appealing intervener. On April 30, 1954, the court entered its order, setting the matter for trial on June 2, 1954. When the intervener failed to appear at the time fixed by that order, plaintiffs moved the court for its order dismissing the intervener's petition. The motion was granted, and the court's order therefor was entered. Within eight days thereafter and during the same term, the intervener having learned that its petition had been dismissed, filed its motion to vacate the order of dismissal, but after a hearing, the court denied the same. The appellant insists that because of certain circumstances hereafter appearing, the court grossly exceeded its discretionary power by denying the motion to vacate the order of dismissal, and therefore the denial of its motion to set the same aside was contrary to law.

Appellant has represented that when the issues upon its petition in intervention were joined, its counsel were instructed by the court to prepare and submit a form of order, setting the matter for trial, leaving blank the hour and date of the setting, as these were to be fixed and inserted by the court. In consequence, the intervener did prepare such an order and transmitted the same to the judge of the district court, together with a 'covering' letter. Thereafter the intervener received back the covering letter from the clerk of court, bearing a stamp indicating the letter had been received and filed, but the intervener did not and never has received from the clerk or otherwise any order or copy of an order showing or indicating the matter had been set for trial. Notwithstanding this, it appears the court did, in fact, complete and enter the order, setting the trial for June 2, 1954, as above stated. The clerk transmitted a copy of the order to the plaintiffs, but there is no showing that a similar copy of the order was ever sent to the appellant or its counsel. Thereafter, at the time and place so fixed for trial, plaintiffs appeared, but this appellant, not knowing the court had completed and entered the order, did not appear. Plaintiffs moved the court for a dismissal, the court granted the motion, and entered its order dismissing appellant's petition in intervention. Appellant promptly moved to vacate the order of dismissal but by order the court denied the motion. It is from this order the appeal is taken.

Plaintiffs have filed their motion to dismiss the appeal because (1) appellant failed to join other parties whom plaintiffs claim are necessary, proper and indispensable, (2) the record does not contain a transcript of evidence, (3) there was no final judgment from which appeal could be taken, (4) matters at issue upon the petition for intervention were res judicata, having been disposed of by dismissal of the first petition in intervention, (5) the petition in intervention did not state facts sufficient to constitute grounds for intervention, and (6) the monies garnisheed were in custodia legis.

In 3 Am.Jur. 305, § 726, it is said in part: 'The grounds for dismissal consists of facts which go to show that for some reason the merits of the appeal should not be heard.' The text then groups into four general classes these grounds for dismissal of an appeal--(1) want of jurisdiction; (2) non-appealability of the judgment or order; (3) ineffectiveness of any judgment that might be rendered by the appellate court; and (4) defects in procedure. Only plaintiffs' second and third grounds may, by any reasoning, be considered as falling within either of the above groupings. See also Bank of Commerce v. Williams, 52 Wyo. 1, 14, 69 P.2d 525, 529, 110 A.L.R. 1463.

While neither want of alleged necessary parties or insufficiency of petition, also see 4 C.J.S., Appeal and Error, § 1356, p. 1959, nor want of merit in the appeal, and see 4 C.J.S., Appeal and Error, § 1353, p. 1944, are proper grounds for dismissing an appeal, we might point out that the alleged want of parties was not raised by demurrer nor answer in the trial court and would not therefore, in any event, be available to the plaintiff-respondent as grounds for dismissal. See Kirch v. Nicholson, 42 Wyo. 489, 494, 297 P. 398, 400. The complaint that the record does not contain a transcript of the evidence is wholly without merit, as there was neither testimony, evidence, nor a trial from which a transcript could be made. The finality of the order dismissing the petition in intervention has already been settled by this court. See Mitter v. Black Diamond Coal Co., 28 Wyo. 439, 444, 445, 206 P. 152, 153; also note Lake v. Lake, 63 Wyo. 375, 182 P.2d 824, and Eager v. Derowitsch, 68 Wyo. 251, 232 P.2d 713, in which latter cases similar appeals were considered. The plea of res judicata is patently without merit, as the United States claimed as a mortgagee under its first petition and as an assignee under its second. With respect to the contention that the attached money was in custodia legis, it may be said that even though there was an attachment and garnishment which created a lien upon money belonging to the defendant in the hands of the garnishee, the lien in itself does not affect the general title of the debtor nor prevent the assignment of his title, see J. H. Mulrein Plumbing Supply Co. v. Walsh, 26 Ariz. 152, 222 P. 1046, 1049; 5 Am.Jur. 92, 93, § 824, although that title may be subject to existing encumbrance, see Platte County State Bank v. Frantz, 33 Wyo. 326, 338, 239 P. 531, 535; 38 C.J.S., Garnishment, § 182, p. 405. It should go without saying that whether or not the lien obtained through processes of attachment and garnishment and by virtue of which it is claimed the monies involved are in custodia legis, makes plaintiffs' claim to the money superior to that of the United States, is not before us at this time. In fact, it is in order to have that point adjudicated in the lower court that this appeal is being prosecuted.

The plaintiffs' motion to dismiss the appeal will be denied.

The remaining question is, Did the court below wrongly exercise its discretion in refusing to vacate its order dismissing intervener's petition? In April 1925, this court decided that the mere fact that a party or his counsel was not notified of the time set for trial, is not of itself sufficient reason to vacate a judgment rendered upon default, saying in Boulter v. Cook, 32 Wyo. 461, 469, 234 P. 1101, 1103, 1104, 236 P. 245:

'The irregularity claimed in the case at bar is, in its ultimate analysis, that the court did not notify Cook or his counsel of taking up and disposing of the case, thus depriving Cook of the opportunity of answering over when the demurrer was overruled. But the courts seem to be unanimous in holding that no such notice was necessary to be given to the parties interested. It is the duty of a party, or his attorney, to take account of the time and place of holding court, the position of the case on the calendar, and the state of the calendar. He is presumed to know, and is held to know, what is necessary to protect his interest.'

Appellant insists the case is now without precedential value, because since that decision was rendered, Section 3-211, Wyoming Compiled Statutes 1945, Ch. 80, Session Laws of Wyo.1929, was enacted, the relevant portion of which reads as follows:

'The clerks of the district courts within the state of Wyoming, are hereby required to send by registered mail to all parties, or their attorneys of record, in all contested cases in said courts, a copy of all orders or judgments, immediately upon the signing thereof by the judge before whom said matter is pending, * * *.'

So it is claimed that the failure of the clerk to send a copy of the order setting the cause for trial in accordance with the statutory requirement, should save appellant from the hardship of being denied opportunity to have its claim disposed of upon the merits and that the rigor of the duty imposed by the Boulter case, supra, should accordingly be somewhat relaxed.

As far as we have learned, the first action taken by our legislature toward requiring notice of the signing or entry of orders, judgments or decrees, or that copies thereof be served or sent to part...