State v. Morgan

• Decision Date: 12 January 1926
• Docket Number: 1358
• Citation: 34 Wyo. 153,242 P. 326
• Parties: STATE v. MORGAN [*]
• Court: Wyoming Supreme Court

242 P. 326

34 Wyo. 153

STATE v. MORGAN ^[*]

No. 1358

Supreme Court of Wyoming

January 12, 1926

ERROR to District Court, Natrona County; HARRY P. ILSLEY, Judge.

Action in the name of the State by the County & Prosecuting Attorney of Natrona County to remove G. T. Morgan from the office of county commissioner. There was judgment for defendant and plaintiff brings error. Heard on motion to dismiss proceedings in error.

Motion to Dismiss Denied.

W. H Patten, Kenneth W. McDonald, Ambrose Hemingway and E. E Enterline for the motion.

Officers not liable to impeachment are removable for misconduct or malfeasance in office; Const., Art. 111, Sec. 19.

The law providing for the removal of officers, 1398-1407 C. S. requires the filing of petition within 30 days after judgment; no provision is made for motion for new trial, nor opportunity afforded the trial court for correction of errors. Conceding the power of the legislature under the Constitution, Art. V, Sec. 18, to provide for review either by direct appeal, or upon error, the statute for removal of officers is special and summary, and must be strictly construed. 2 Hayne's N. T. & A., Sec. 179; in re McCabe (N. D.), 67 N.W. 143; State vs. Thompson (Minn.), 97 N.W. 887, 36 Cyc. 1189; 37 Cyc. 530; Judson vs. Smith, 104 Mo. 51; generally statutes relating to appeal are mandatory and jurisdictional; Daley vs. Anderson, 7 Wyo. 1; 4 A. & E. Enc. of L. & P., pp. 116 and 117; Elliott on A. P., Sec. 111; Anderson vs People, 28 Ill.App. 317; Marder Luse & Co. vs. Co., 76 Ill.App. 431; Cain vs. State, 74 N.E. 1102; Packard vs. Craig (Calif.), 45 P. 1033; matters not requiring consideration in the trial court upon motion for new trial as a condition precedent to review, will be final when rendered or recorded; Conradt vs. Lepper, 13 Wyo. 99; Tolteck Co. vs. Gillespie, 20 Wyo. 314; general statutes relating to procedure in error or direct appeal, do not apply here; 1406 C. S. 6378, 6386, 6412, 6413 C. S. The terms of the statute leave no room for construction; Brennan vs. Midwest Co., 29 Wyo. 116; the petition in error was not filed until 62 days after the entry of judgment, thus depriving this court of jurisdiction to review.

David J. Howell, Attorney General; George A. Weedell, County and Prosecuting Attorney of Natrona County; E. Paul Bacheller and Robert R. Rose, contra.

Irrespective of whether the statute relating to the removal of county officers, Chap. 99, 1920, is a special proceeding or a general law, the statute covering proceedings in error applies to special proceedings; Chap. 390, C. S. 6369 C. S. A motion for new trial was properly made; Burns vs. R. R. Co., 14 Wyo. 498; a judgment does not become final until motion for new trial is disposed of; Conradt vs. Lepper, 13 Wyo. 99; Chap. 390, C. S., Sec. 6369, C. S. 1920; a motion for new trial is necessary as a basis for error proceedings. The motion to dismiss should be denied.

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

OPINION

POTTER, Chief Justice.

This cause has been heard upon a motion to dismiss the proceeding in error, the grounds stated being that the court was without jurisdiction of the subject matter of the proceeding for the reasons: 1. That the judgment sought to be reviewed was rendered by the district court of Natrona County on September 1, 1925, and entered of record on September 3, 1925. 2. That the petition in error was not filed within thirty days after the entry of said judgment, and not until November 4, 1925. 3. That there is no error assigned concerning the entry of the judgment, but only concerning the denying of the motion for new trial. 4. That no order has been made or entered in this court fixing the time within which the necessary records and proceedings of the district court should be filed in this court.

The case, like that of State v. Scott (Wyo.), 34 Wyo. 163, 242 P. 322, this day decided upon a motion to dismiss the appeal taken in that case, was brought in the district court of Natrona County under a statute providing for the removal of county officers, the provisions of which are found in Chapter 99, Compiled Statutes 1920, comprising sections 1398 to 1407, inclusive, of that compilation. It is unnecessary now to recite any of the provisions of that statute except the provision of section 1406, that "either party may commence a proceeding in error in the supreme court by filing a petition in error as in civil actions, within thirty days after the entry and (of) said judgment, and the supreme court may upon motion of the attorney general fix a time within which the necessary records of the proceedings and the briefs of the parties shall be filed, and advancing the cause for hearing." The judgment was in favor of the defendant, whom it was sought to have removed from his office of county commissioner of Natrona County; and said judgment was rendered and entered upon a verdict directed by the court. The only error assigned in the petition in error herein is that the district court erred in denying the motion of the plaintiff for a new trial of the cause. The petition in error was filed in this court on November 4, 1925, and there was also filed on that date praecipe for summons in error. On that date also summons in error was issued, and it appears to have been properly and timely served upon one of the attorneys of record for the within named defendant in error; and on said date an application was filed and an order issued as provided generally by law (Comp. Stat. 1920, Sec. 6376) for a transfer to this court of original papers, duly certified, and a transcript of journal entries. And the original papers and transcript so called for appear to have been transmitted to this court and filed with the clerk on November 9, 1925.

The certified copy of the journal entries shows that the date of the rendition of the judgment was September 1, 1925; that said judgment, made out in form and signed by the trial judge, was filed with the clerk of the district court on September 3, 1925, and that it was entered on the journal under the date and as a part of the proceedings of September 10, a subsequent day of the same, the September, 1925, term. The original verdict, in the record here with other original papers, upon which the judgment of September 1 was rendered, shows that it was returned and filed on August 6, 1925. The bill of exceptions shows that a motion for a new trial was filed on August 17, before the rendition and entry of the judgment, and the motion is set out in full in said bill, which shows also that said motion was presented and argued to the court on September 23, 1925, and upon consideration thereof was afterward overruled and the plaintiff excepted to said ruling. The record shows also that the date of the entry of the order overruling said motion was October 12, 1925, or at least not prior thereto, for that is the date upon which the formally prepared order was filed with the clerk.

The filing of the petition in error and the issuance of summons in error duly served, constituted the commencement of the proceedings in error in this court. It did not occur within thirty days after the entry of the judgment, for the date of that entry appears to have been not later than September 10, 1925. But it did occur within thirty days after the filing and entry of the order overruling the motion for a new trial. And the question arises whether that is to be taken as the commencement of the thirty day period instead of the date of the entry of the judgment itself. The general statutory limitation upon the time for bringing a proceeding in error is one year after the rendition of the judgment or the making of the order complained of, with certain stated exceptions not material here. Comp. Stat. 1920, Sec. 6384. The removal statute which controls the matter in this case prescribes a limitation period, as above stated, of thirty days from and after entry of the judgment. A rule of this court which has been in existence from practically the beginning of the organization of the court under a territorial form of government, provides that nothing which could have been properly assigned as a ground for a new trial in the court below will be considered in this court in a proceeding in error unless it shall appear that the same was properly presented to the court below by a motion for a new trial, that such motion was overruled, and an exception reserved to such ruling at the time, all of which shall be embraced in the bill of exceptions. And that rule also provides that the ruling of the trial court upon each matter presented by a motion for a new trial shall be sufficiently questioned in this court by an assignment that the court below erred in overruling such motion. Rule 13. Considering the statute limiting, generally, the period for commencing a proceeding in error to one year after the rendition of the judgment or final order complained of, this court has held, in view of the court rule aforesaid, that a proceeding in error commenced within one year from the order overruling a motion for a new trial seasonably filed is commenced in time to authorize the review of alleged errors properly involved in the determination of such motion. Conradt v. Lepper, 13 Wyo. 99, 78 P. 1, 3 Ann. Cas. 627. We quote the following extracts from the opinion in that case:

"For most purposes there can be little question about the date of the rendition of a judgment. Generally, no doubt, that fact will be determined by the date of...