State ex rel. City of Cheyenne v. District Court of Sixth Judicial District Within And for Goshen County

• Decision Date: 30 December 1930
• Docket Number: 1694
• Citation: 42 Wyo. 364,294 P. 779
• Parties: STATE EX REL. CITY OF CHEYENNE v. DISTRICT COURT OF SIXTH JUDICIAL DISTRICT WITHIN AND FOR GOSHEN COUNTY, ET AL
• Court: Wyoming Supreme Court

294 P. 779

42 Wyo. 364

STATE EX REL. CITY OF CHEYENNE v. DISTRICT COURT OF SIXTH JUDICIAL DISTRICT WITHIN AND FOR GOSHEN COUNTY, ET AL

No. 1694

Supreme Court of Wyoming

December 30, 1930

ORIGINAL proceeding in prohibition by the State of Wyoming on the relation of the City of Cheyenne, against the District Court of the Sixth Judicial District, within and for the County of Goshen in the State of Wyoming, and Cyrus O. Brown judge of said district. Petition for writ of prohibition granted, and writ issued.

Petition for Writ of Prohibition Granted and Writ Issued.

The cause was argued orally by M. A. Kline, W. C. Kinkead, of Kinkead & Pearson, and H. B. Henderson, Jr., all of Cheyenne, Wyoming, for the relator.

And by G. R. Hagens, of Hagens & Murane, of Casper, Wyoming, for the respondents. The cause was submitted without briefs.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

This is an original proceeding for a writ of prohibition. On October 21, 1929, one C. R. Inman commenced an action in the District Court of Laramie County, Wyoming, against the City of Cheyenne, the relator herein, asking to recover from the relator in his first cause of action the sum of $ 95,894.47; in the second cause of action the sum of $ 93,682.77; in his third cause of action the sum of $ 157,896.76; and in his fourth cause of action the sum of $ 189,577.74, the indebtedness arising out of and in connection with the construction of a sewer in the City of Cheyenne, the petition filed in the cause containing nearly two hundred pages of typewritten matter. It is conceded that the case is somewhat involved, would take several days to try, and that a great number of witnesses would be summoned in the action. The defendant filed a counterclaim in the action in the sum of well over $ 100,000. The Hon. Harry P. Ilsley, judge of the 7th judicial district, was called in to sit in the case. On June 18, 1930, on motion and affidavit of Inman for change of venue from Laramie County, the case was directed to be transferred to Goshen County. A transcript of the proceedings and the papers in the case were immediately thereafter sent by the clerk of the District Court of Laramie County to the clerk of the District Court of Goshen County, and the papers were received by the latter on June 28, 1930. In the meantime the bond required by statute on change of venue was also duly given. The case, however, was not filed or docketed by the clerk of the District Court of Goshen County on account of non-payment of fees until November 28, 1930, five months after the papers had been received. By order of November 22, 1930, the cause was set down for trial on December 3, 1930. At that time objections were filed to the jurisdiction of the District Court of Goshen County, based on the fact that the venue of the case had not been perfected and the change had been abandoned because the case was not filed and docketed in Goshen County until November 28, 1930. The objections were overruled and the case reset for trial on December 22, 1930. Thereupon a petition was filed in this court for a writ of prohibition. Counsel for relator and for Inman and the defendants in this proceeding appeared. The cause was fully argued, and it was agreed that a permanent writ might be issued if the court should find that any writ should be issued at all.

1. We held in the case of State ex rel. Higley v. District Court, 41 Wyo. 1, 281 P. 196, that an order changing the venue in a case is conditional and becomes effective only when the requirements of the statute are complied with. And the authorities all seem to hold that the acts necessary to perfect a change must be performed within the time prescribed by law or within a reasonable time. 40 Cyc. 174-175. Section 1160, Wyo. C. S. 1920, provides that all fees prescribed by statute for civil business shall be collected in advance by the clerk of the District Court and paid to the treasurer of the county at the end of each month, and that such clerk shall be liable on his bond for the collection and payment of such fees. Section 1161, Wyo. C. S. 1920, among other things provides that the docket fee in each case filed shall be $ 5.00; that for indexing and docketing the case the clerk shall charge one dollar, and for filing each paper, etc., ten cents. We do not think that the bond given upon a change of venue covers or takes the place of the fees which the clerk is required to collect in advance, and without deciding that the docket fees of $ 5.00 must be paid, we think that it was the duty of the party taking the change, in order to have his case docketed, to pay the fee required for filing...