State v. Anderson

• Decision Date: 31 March 1953
• Docket Number: No. 2563,2563
• Parties: STATE, v. ANDERSON.
• Court: Wyoming Supreme Court

Page 220

255 P.2d 220

71 Wyo. 127

STATE, v. ANDERSON.

No. 2563.

Supreme Court of Wyoming.

March 31, 1953.

Raymond, Guthrie & Raymond, Newcastle, for appellant.

Harry S. Harnsberger, Atty. Gen., Paul T. Liamos, Jr., and James L. Hettinger, Assts. Atty. Gen., for respondent.

Before BLUME, C. J., and RINER and ILSLEY, JJ.

RINER, Justice.

This case comes before the Court on a motion to dismiss an appeal from an order of the District Court of Weston County which denied a motion to enjoin the enforcement of a judgment of a Justice of the Peace in said county.

Robert William Anderson was arrested and brought before Justice of the Peace, Dorothy E. Shank, on a criminal complaint charging him with operating a motor vehicle on the highways of the State of Wyoming while intoxicated. Defendant Anderson requested trial before a jury. On February 21, 1951, the date set for the trial, defendant Anderson filed an affidavit of prejudice against the said Justice of the Peace. She accordingly transferred the case to be heard before one Fred Hansen, a Justice of the Peace, residing in the town of Upton in Weston County. That official set the case for trial at Newcastle, Wyoming, to be heard on March 6, 1951. Defendant again demanded that the case be tried before a jury. That request was granted. The case was thus tried resulting in a verdict of guilty, on which the Justice entered judgment that the defendant, Anderson, pay a fine of $50 and costs taxed at $19.45. Thereupon defendant filed a Notice of Appeal, gave bond set at $100 and this bond was approved by the presiding Justice. Nothing further seems to have been done until September 10, 1951. On that date Justice Hansen filed in the District Court of Weston County a transcript of the proceedings in the cause. Thereafter on March 3, 1952, the County and Prosecuting Attorney of said county filed in the District Court aforesaid a motion that said court make an order 'dismissing the appeal of the Defendant and carrying into effect the judgment of the Justice of the Peace on the ground that the Defendant has not perfected his appeal, in that there are not sufficient pleadings and instruments before the Court at this time upon which to try this case.' This motion was heard the same day it was filed and the Court found that: 'this Court has no jurisdiction over the subject matter' and it was 'Therefore ordered that the appeal and proceedings herein be and the same are hereby dismissed. To all of which defendant excepts.' (Italics supplied.)

This order was dated March 4, 1952, and the order form was filed in the office of the District Clerk on March 4, 1952. April 1, 1952, the defendant, Robert William Anderson, filed a motion setting out that: '* * * after such appeal had been taken the said Justice of the Peace wholly failed to file in the District Court or the office of the Clerk of the District Court any recognizance or undertaking to require the material witnesses to appear and testify on the trial of said appeal and he wholly failed to file certain original papers in said case among them, the original complaint and warrant issued herein. That as a result thereof your said defendant has been deprived of his day in Court and his right to an appeal because of the failure of the Justice of the Peace to comply with the statute in such cases made and provided.'

Also that: 'said Justice of the Peace was guilty of malfeasance as a result of his failure so to do and under and by virtue of Section 15-212, W.C.S.1945, is guilty of misdemeanor.' And that: '* * * notwithstanding the said wrongful acts of the Justice of the Peace he now asserts the right to collect the fine herein levied against the defendant and to enforce said judgment which was made effective by his failure to file the proper papers in said appeal. That said order of dismissal heretofore made herein dismissed the appeal and proceedings herein.' This motion requested an '* * * order of this Court directing the Justice of the Peace herein, Fred Hansen, to appear and show cause, if any he has, why he has failed and neglected to comply with said statute and why he should not be punished as by law provided and enjoined from the enforcement of his judgment herein and that he notify the Highway Department to release and charge against the defendant growing out of said action and for such other and further orders as the Court may deem necessary.'

On the 18th day of April, 1952, the District Court made an order in the cause of State of Wyoming v. Robert William Anderson reading: 'This matter having come on for hearing on this 18th day of April, 1952, upon the Motion of Robert William Anderson by and through his attorneys, Raymond, Guthrie and Raymond, and the Court having examined the files herein and after having heard the argument of counsel thereon, It Is Hereby Ordered that the Motion of the Defendant be denied. That the Defendant excepts to the above ruling, which exception is allowed.'

This order was entered on the Journal of the Court on April 23, 1952. Thereafter a Notice of Appeal in the cause was filed by defendant, Anderson, in the District Court on April 30, 1952, purporting to appeal from the order of the court last above set out.

The plaintiff and respondent, the State of Wyoming, by its Attorney-General has moved to dismiss the appeal aforesaid assigning as grounds therefor: '1. After the Final Order of the District Court dismissing the appeal from the Justice of the Peace court the Appellant did not perfect the appeal to this Court within the ten (10) days prescribed by Section 3-5402, Wyoming Compiled Statutes, 1945. 2. The Order of the District Court upon which the Defendant and Appellant has based this appeal is not an appealable Order.'; and the matter is now for decision.

Complaint is made that Justice Shank should have transferred the cause to another justice living and having his office in Newcastle, Wyoming, pursuant to section 14-301, W.C.S.1945. This contention is mistakenly made by counsel. Changes of venue under the Criminal Code for Justices of the Peace for use in the Justice Courts in this State are governed not by the section last cited which deals with the Civil actions in Justice of Peace Courts, but by section 15-111 W.C.S.1945 which reads:

'If such affidavit be filed, the change of venue must be allowed, and the justice must immediately transmit all the original papers, and a transcript of all his docket entries in the case, to any justice in the county, who shall have been elected or...