State ex rel. Walls v. District Court,

• Decision Date: 04 June 1928
• Docket Number: 1529
• Citation: 267 P. 1060,38 Wyo. 427
• Parties: STATE EX REL. WALLS v. DISTRICT COURT, ET AL. [*]
• Court: Wyoming Supreme Court

267 P. 1060

38 Wyo. 427

STATE EX REL. WALLS v. DISTRICT COURT, ET AL. ^[*]

No. 1529

Supreme Court of Wyoming

June 4, 1928

ORIGINAL proceeding in prohibition by the State of Wyoming on the relation of W. L. Walls against the District Court of the Fifth Judicial District of the State of Wyoming in and for the County of Park, C. O. Brown, Judge thereof and another.

C. L Rigdon, H. S. Ridgely and W. L. Walls, pro se, for plaintiff.

No brief was filed on behalf of plaintiff.

Ernest J. Goppert, for defendant, Susan B. Buchanan.

The application for prohibition was prematurely filed, 22 R. C L. 29; 32 Cyc. 624; Dobson v. Westheimer, 36 P. 626; State v. Bank, (Wyo.) 39 P. 749; State, ex rel. v. Ausherman, (Wyo.) 72 P. 200. The petition fails to show an absence of adequate remedy at law; State v. Court, (Wyo.) 260 P. 187; jurisdiction of District Court is fixed by the Constitution, Art. IV, Sec. 1; appeals from cases like this have been sustained by this court, Cooper v. McCormick, (Wyo.) 69 P. 301; Baker v. Brown, (Wyo.) 74 P. 95; Bucknum v. Johnson, (Wyo.) 127 P. 904; Miller v. Hurley, (Wyo.) 262 P. 238; Walls v. Evans, (Wyo.) 265 P. 29. There is adequate remedy at law, City v. Schoberlein, (Ill.) 82 N.E. 860; Maxwell v. People, (Ill.) 59 N.E. 1101; Rowand v. Dist., 98 N.E. 970. The constitutionality of laws is presumed, Dell v. Marvin, (Fla.) 26 So. 188; State v. Drayton, (Nebr.) 117 N.W. 768; Salter v. State, (Okla.) 102 P. 719; N. Y. Cent. Ry. Co. v. Williams, 92 N.E. 404. Computation of time is governed by Sec. 5535 C. S. An appeal from a decision of a District Court does not suspend the judgment appealed from, unless a supersedeas, stay or appeal bond is given, and anyone relying on the original decree or rights acquired thereunder by third parties will be protected, 3 C. J. 1272, 1273, Sec. 6412, 6413 C. S.; the original decree takes effect from its date of entry, 21 C. J. 767; Taylor v. Boyd, (Oh.) 17 Am. Dec. 603; Glafcke v. O'Brien, 1 Wyo. 316; likewise one in whose favor a decree is rendered is obligated to comply with its conditions, Sparhawk v. Duell, 9 Vt. 41; 21 C. J. 668; 34 C. J. 508; Lewis v. Kean, 61 N.W. 63; Blankenhorn v. Edgar, (Ia.) 186 N.W. 896; 29 Cyc. 1522. Land Board Rule 64 has a settled meaning, Walls v. Evans, 265 P. 29; the plaintiff failed to comply with the District Court decree by payment of fees. The Board may lease vacant lands under their control, 706 C. S. Plaintiff's fees were refunded but he did not make a tender of fees and rentals, from the date of said refund in February, 1927 until September 1927; he did not, therefore, comply with the Board Rule referred to and loses all right to a lease on the land in question. The doctrine of stare decisis does not apply here; plaintiff is not entitled to a writ of prohibition. The question of jurisdiction of a District Court in the premises has not been settled; plaintiff has a plain, speedy and adequate remedy by appeal. Apparently plaintiff changed his mind and did not want a lease during the period between the date of the decree and until September 23, 1927. If rule 64 was binding on Evans it must be binding on Walls. During the interim the lands were not leased but were open to the first qualified applicant complying with the rules and regulations, and in particular, Rule 64 of the Board.

Ernest J. Goppert, for defendants District Court and C. O. Brown, Judge.

The District Court and C. O. Brown, Judge thereof, adopts the brief of defendant Susan B. Buchanan, filed herein, except as to the contentions of the plaintiff and defendants on the question of jurisdiction of said court to entertain the appeal in question.

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

OPINION

BLUME, Chief Justice.

In February, 1927, one Lloyd I. Evans and W. L. Walls filed applications for a prospector's permit to Section 36, T. 51 N. R. 101 W. A contest ensued between these applicants, and the State Board of Land Commissioners awarded a permit to Evans. Thereupon Walls, the relator in this case, brought an action for mandamus to compel the Board aforesaid to issue a lease to him. This was denied by the court, holding that Walls had an adequate remedy by appeal to the District Court, as provided by law. 254 P. 491. An appeal was accordingly taken to the District Court of Park County, and that Court held in favor of Walls, and that decision was affirmed by this court on March 6, 1928, in the case of Walls v. Evans, 38 Wyo. 103, 265 P. 29. The judgment of the District Court above mentioned was rendered on August 31, 1927, and among other things adjudged as follows:

"That the State Land Board of the State of Wyoming be and hereby is directed to grant an oil and gas prospector's permit or lease of the land hereinbefore mentioned to W. L. Walls, the appellant herein, and that the proper officers of the State of Wyoming be and they hereby are directed to execute and deliver to W. L. Walls, the appellant herein, an oil and gas prospector's permit or lease of the lands hereinabove mentioned and described in accordance with the law of the State of Wyoming and the rules and regulations of the State Land Board, upon the said W. L. Walls paying or tendering to the Commissioner of Public Lands the sum of two hundred and eleven dollars ($ 211) the fees and rentals required by the laws of the State of Wyoming and the rules and regulations of the State Land Board of the State of Wyoming.

"That in event of the said appellee, Lloyd I. Evans failing to surrender the said lease or prospector's permit hereinbefore mentioned to the Commissioner of Public Lands of the State of Wyoming for cancellation and in event of said Commissioner failing to cancel said lease or oil and gas prospector's permit within the period of fifteen (15) days of the entry of this judgment by the Clerk of the above entitled court, this judgment shall stand for in stead of and in lieu of such surrender and cancellation, and shall be taken for and deemed to be a cancellation of said lease."

This judgment was entered on the journal of the above entitled court on September 7, 1927. On September 21, 1927, Susan B. Buchanan made an application for a prospector's permit for the same land, tendering the proper fees. On September 23, W. L. Walls wrote the State Land Board as follows:

"Herewith I tender the sum of $ 211.00 and request you to issue to me an oil and Gas Prospector's permit for Sec. 36, Twp. 51 N. R. 101 in accordance with the judgment of the Dist. Court of the State of Wyo. in and for Park Co. a certified copy of which is on file in the office of the Commissioner of Public Lands of the State of Wyo."

On November 23, 1927, the State Land Board voted

"That the order, of the District Court of Park County, be complied with and an Oil and Gas Prospector's Lease on Sec. 36, Twp. 51 N., Rg. 101 W., in Park County, Wyoming, dated from December 2, 1927, be issued to W. L. Walls."

A lease was issued in accordance with this action. On the same day, viz: November 23, 1927, the Commissioner of Public Lands--not the State Land Board--rejected the application of Susan B. Buchanan, giving thirty days in which to appeal from that decision. A protest and appeal from that decision was filed in the office of the Commissioner of Public Lands on December 19, 1927, setting forth some of the provisions of the judgment of the District Court of Park County, Wyoming, heretofore set out; that Evans did not surrender his lease to the Commissioner of Public Lands for cancellation; that according to the terms of the judgment of the District Court, the lease to Evans was cancelled and became void on September 22, 1927; that she, Susan B. Buchanan, made her application in due form on September 21; that Walls did not make his application until September 23, 1927, a day too late; that the land becoming vacant on September 22, she was the first applicant for the land and should be awarded a prospector's permit. On December 27, W. L. Walls filed what he called an "Answer to Protest and Appeal" filed by Susan B. Buchanan, claiming in substance that the State Land Board had no jurisdiction over the lands and no right or authority whatever to make disposition thereof other than the disposition which it was required to make by the terms and conditions of the judgment of the District Court above mentioned. The so-called appeal of Susan B. Buchanan was heard on February 2, 1928 and the decision of the Commissioner of Public Lands rejecting the application of Susan B. Buchanan was affirmed, that application being "in conflict with a lease directed to be issued to W. L. Walls by a competent court of this state." From that decision of the Board an appeal was taken to the District Court of Park County, which came on for hearing on May 4, 1928. W. L. Walls objected to the jurisdiction of the court, claiming that it had no jurisdiction of the subject matter. The court reserved its decision and proceeded to hear the appeal on its merits. Thereupon Walls applied to this court for a writ of prohibition to prohibit the said District Court from proceeding in the matter of the appeal of Susan B. Buchanan above mentioned. Notice of the application was given to counsel for Susan B. Buchanan. At the time fixed in the notice counsel appeared and filed an answer for all the defendants. The case was argued orally and both sides submitted written briefs and the case was accordingly taken under advisement.

1. It is claimed by counsel for the relator herein that there was no contest before the State Land Board and that accordingly no such an appeal as was taken by Susan B. Buchanan was authorized and that the District Court had no jurisdiction of the subject matter because of that fact. The appeal taken by her was taken pursuant to ...