State v. Genero

• Decision Date: 23 October 1928
• Docket Number: 1549
• Parties: STATE v. GENERO [*]
• Court: Wyoming Supreme Court

271 P. 17

39 Wyo. 325

STATE v. GENERO ^[*]

No. 1549

Supreme Court of Wyoming

October 23, 1928

APPEAL from District Court, Fremont County; CYRUS O. BROWN, Judge.

Pete Genero was convicted of a felony and he appeals, heard on motion to dismiss the appeal.

Motion to dismiss granted.

W. O Wilson, Attorney General, and Richard J. Jackson, Special Assistant Attorney General, for the motion.

Specifications of error were not served and filed as required by law. 6408 C. S. There was no waiver by respondent. Acknowledgment of service does not constitute waiver of right to question the timeliness of the filing of the record or the service. Hanson v. R. R. Co., 29 Wyo. 421; Coffee v Harris, 27 Wyo. 394; 197 P. 649; Grippin v State, 20 Wyo. 486, 124 P. 764. In this case there was no compliance with the statute. Hahn v. Bank, 25 Wyo. 467; McGinnis v. Beatty, 27 Wyo. 287. This case is distinguishable from Hanson v. R. R. Co., supra, where the specifications were filed within the statutory period but service was not made until three months thereafter. The statutory requirements were mandatory. Mitter v. Coal Company, 28 Wyo. 439; Blonde v. Merriam, 21 Wyo. 513; Todd v. Peterson, 13 Wyo. 513. Failure of the appealing party to perform some required act, precludes jurisdiction. Posvar v. Royce, (Wyo.) 258 P. 587. Genero v. Roach, (Wyo.) Case No. 1552. Appellant failed to prosecute his appeal with due diligence; Appellate Courts have inherent power to clear their dockets of the cases where parties fail to prosecute within a reasonable time. 2 Ency. Pl. & Pr. 340; Mathewson v. Ry. Co., 44 Mo.App. 97; Howell v. Van Ness, 31 N. J. L. 443.

C. J Christie and John Dillon, contra.

Specifications of error are not jurisdictional. Hanson v. Ry. Co., 29 Wyo. 421. While the exact point involved here was not involved in the Hanson case, the holding there seems to be, that the Court retains jurisdiction even though no specifications of error are filed, and that where a motion to dismiss is made because of failure to file specifications of error, it is a matter for the discretion of the Court as to whether the appeal will be dismissed.

KIMBALL, Justice. BLUME, Ch. J., and RINER, J., concur.

OPINION

KIMBALL, Justice.

The Attorney General moves to strike from the record the specifications of error and dismiss the appeal. The defendant on June 3, 1927, was sentenced pursuant to the verdict of a jury finding him guilty of a felony under Chapter 28 of the laws of 1927. He gave notice of appeal, and was released on bail pending the appeal. By orders of the court or judge the time for filing the record on appeal was extended until October 21, 1927, and the record was filed on that day with the clerk of the District Court. Nothing further was done in the case until July 6, 1928, more than 13 months after the entry of the judgment, when the county and prosecuting attorney moved that the defendant, then at large on bail, be apprehended and required to show cause why the judgment should not be carried into effect. Thereafter, on July 7, 1928, the District Court entered an order putting the judgment into effect, and a mittimus was issued on which the defendant was taken to the penitentiary where he is now serving his sentence. Those proceedings for defendant's commitment were before us in Genero v. Roach, 39 Wyo. 40, 270 P. 152, on an application for a writ of habeas corpus which was denied. It was not until July 14, 1928, that the defendant filed and served his specifications of error. In due course thereafter the record on appeal reached this court August 8, 1928.

The statutes regulating appeals to this court require that the record on appeal be filed in the District Court seventy days after the entry of the judgment, unless that time be extended by the court or judge for cause shown. Sec. 6404, C. S. 1920. After that record is filed, the appellant has ten days within which to serve and file his specifications of error. Sec. 6408. The specifications of error, when filed, are authenticated by the certificate of the clerk, and by him attached to the record of which they then become a part. Sec. 6406. Within five days after the specifications of error are filed, the clerk notifies the judge that the record on appeal is perfected and on file, and then follow other steps that finally result in the filing of the record in this court. Sec. 6410.

We have held that the service of specifications of error is not jurisdictional. McGinnis v. Beatty, 27 Wyo. 287, 294, 196 P. 311; Hanson v. C. B. & Q. Ry. Co., 29 Wyo. 421, 213 P. 763. Also, that the failure of the record to show a separate authentication of the specifications of error is not a jurisdictional defect. McClintock v. Ayers, 34 Wyo. 476, 483, 245 P. 298. It was said in Hanson v. C. B. & Q. Ry. Co., (29 Wyo. at p. 430, 213 P. 765) that it had previously been held by this court that the filing of specifications in error is not jurisdictional, and the failure to comply with the statute in that respect may be waived. It seems, however, that in that case, as well as in all other cases wherein our attention has been called to some alleged defect in regard to the specifications of error, the specifications were in fact filed in time, and the question of the effect of a failure to comply with the statute in that respect, ought, perhaps, to be considered an open question. If it be an open question, we need not decide it in this case, for, whether or not the failure to file in time the specifications of error is a jurisdictional defect, we are of the opinion that it may properly be made the ground of a motion to dismiss, and that, in the circumstances of the case at bar, it is a sufficient ground for sustaining the motion.

The defendant, in resisting the motion, relies solely on Hanson v. C. B. & Q. Ry. Co., supra. In that case we discussed at length the effect of a failure or delay in serving specifications in error. The right of the respondent to move for a dismissal on that ground was conceded, and while we held that the court was not in all cases required to sustain the motion though timely made without waiver of the default, we said:

"But the court may dismiss on that ground, and, no doubt, ought to do so where substantial injury or prejudice might otherwise result, * * *. In every such case the cause, extent and effect of the failure or delay should be considered, and such other facts as may be deemed proper as a guide to the exercise of judicial discretion in a matter of that kind."

In Miller v. New York Oil Co., 32 Wyo. 483, 235 P. 323, we held that, if the statute limiting the time for commencing a proceeding in error might be held to apply to proceedings under the direct appeal statute, it would be necessary to hold that the appeal proceedings were commenced with the filing and service of the notice...