State v. Scott
| Decision Date | 12 January 1926 |
| Docket Number | 1359 |
| Citation | 242 P. 322,34 Wyo. 163 |
| Parties | STATE v. SCOTT [*] |
| Court | Wyoming Supreme Court |
APPEAL from 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 J. E. Scott from the office of county commissioner. From a judgment restoring defendant to office after vacating judgment of removal, the State appeals. Heard on motion to dismiss appeal.
Motion to Dismiss Denied.
W. H Patten, Ambrose Hemingway, Kenneth W. McDonald and E. E Enterline for the motion.
The removal statute contemplates the filing of petition in error within 30 days after the entry of judgment by the trial court. No provision is made for the correction of error by the trial court, neither the statute relating to proceedings in error, nor the direct appeal statute apply here; 6401-6415 C. S.; Thomas vs. Bivin (Wyo.), 235 P. 321; District Courts have power to modify or vacate their judgments at the term when entered; McGinnis vs. Beatty, 28 Wyo. 328; Mitter vs. Coal Co., 28 Wyo. 439; Automobile Co vs. Hamilton Co. (Wyo.), 226 P. 687; the legislature may regulate appellate procedure; Const., Art. V. Sec. 18; it may provide more than one method of review. The statute under consideration, however, is a special statute; 36 Cyc. 1189; 2 Hayne's N. T. & A., Sec. 179; State vs. Thompson (Minn.), 97 N.W. 887; 37 Cyc. 530 and cases cited appellate procedure is generally mandatory and jurisdictional; Daley vs. Anderson, 7 Wyo. 1; Elliott on A. Pro., Sec. 111; 2 R. C. L. 104; State vs. Musical Club (Md.), 20 A. 242; Marder Luse Co. vs. Mfg. Co., 76 Ill.App. 431; Cain vs. State, 74 N.E. 1102; Livingston vs. State (Tex), 11 S.W. 114; People vs. Bank (Calif), 92 P. 481; if the meaning of the language of the statute be plain, there is no room for construction; Brennan vs. Midwest Co., 29 Wyo. 116.
David J. Howell, Attorney General; George A. Weedell, County & Prosecuting Attorney of Natrona County; E. Paul Bacheller and R. R. Rose, contra.
Decisions from other states on the subject of appellate procedure are of little value unless the statutes of such states are sustained. But one method of review existed in this state at the time of the enactment of Chapter 99, Laws of 1920. The statutes use the terms "appeal" and "proceeding in error" promiscuously, as noted in sections 1084 and 1202, Laws of 1920. The Act of 1915 uses the word "appeal;" the only existing method for review at that time was by error proceedings; but it could not be argued after the enactment of the direct appeal statute, that that method was exclusive; methods of review apply alike to both general and special proceedings; 6369 C. S.; 6409 C. S.; Bock vs. Nefsy, 29 Wyo. 33; Mitter vs. Coal Co. (Wyo.), 191 P. 1069.
This case is here on appeal and has been heard upon a motion to dismiss. The grounds of the motion are, as stated therein: 1. That no petition in error has been filed nor summons in error issued in this proceeding. 2. That no motion or application has been made or filed by the attorney general for an order and the fixing of the time within which the necessary records of the proceedings of the trial court should be filed in this court. 3. That no such order has been made or entered by this court. 4. That there is no right of appeal on the part of plaintiff and appellant, but that its right of review of the judgment of the district court, if any, must have been exercised by the filing of a petition in error in this court within thirty days after the date of the entry of said judgment in the district court. They each raise the question specifically suggested by the 4th ground, viz: whether, from the judgment complained of, there is any right of review in this court except upon a proceeding to be commenced by the filing of a petition in error.
The action in the district court was one commenced in the name of the state by the county and prosecuting attorney of Natrona county for the removal of the respondent from the office of county commissioner of said county. And that action resulted, first, in a judgment upon a verdict of a jury directing the removal of the respondent, the defendant in the action below, and later, during the same term of the district court, an order sustaining a motion to vacate that judgment and the rendition and entry of another judgment restoring the said defendant and respondent to his said office of county commissioner, and finally denying the petition for his removal. And to review that judgment the case has been brought here by the State under a statute providing for a review in this court by a so-called direct appeal.
It is conceded that the removal proceeding was brought under the provision of Chapter 99 of the Compiled Statutes of 1920, including sections 1398 to 1406. It is sufficient to say of the proceedings provided for by that statute that it provides, generally, for the removal of any county officer by the district court of the proper county upon charges made in writing and a hearing thereunder, if, after proof submitted, the court shall be satisfied that the said officer has been guilty of misconduct or malfeasance of office; and the proceedings thereby provided are an action by the county and prosecuting attorney or the attorney general praying for such removal, setting forth the facts constituting the misconduct or malfeasance; that upon the filing of such petition a summons shall be issued for the defendant as in civil actions, to be served upon him together with a copy of the petition; the answer day to be the same as in civil suits, and it is specifically provided also that the petition and answer shall constitute the only pleadings allowed, and that the allegations of the answer, so far as they conflict with the petition, shall be considered denied without a reply. It is further provided by that statute that the action shall be tried in a summary manner by the court with or without a jury not less than five nor more than thirty days after answer day, and that upon the trial all questions touching the sufficiency and certainty of the allegations of the petition or answer shall be heard and determined, and such amendments not inconsistent with the original pleadings shall be authorized to be made at once, without delaying the trial of the case. And that, if the court shall find the defendant guilty of the alleged misconduct or malfeasance a judgment shall be entered removing him from his office and taxing against him the costs of the action. It is also provided that the Governor may direct the commencement and prosecution of such action under stated conditions (Sec. 1399), and that (Sec. 1403) whenever such a proceeding has been commenced, the governor, upon a hearing for that purpose, may suspend such officer from the further exercise of his duties until the termination of the trial. But we do not understand that in this case there had been any such order for suspension or hearing therefor. This is followed by a provision in Section 1404 for filling vacancies in case of any such suspension, and also, in 1405, by a provision that when any officer, who has been suspended under the provisions of the statute, is found to be not guilty of the misconduct or malfeasance charged against him, he shall be restored to his office and receive the official compensation during the period of his suspension and be reimbursed by the state for actual and necessary expenditures in connection with his trial and hearings provided for in said chapter.
We are then brought to the Section (1406) upon which the contentions of respondent here are based, which reads as follows:
It is, of course, true that having come here by direct appeal under statutory provisions presently to be stated, no petition in error was filed in this proceeding nor any order made upon motion of the attorney general or otherwise for the removal of any papers or records from the district court to this court, as might have been done and would have been necessary in a proceeding in error. The question, then, for decision here, as we understand it, is whether either party to a judgment in an action under said removal statute may come to this court by appeal, as distinguished from a proceeding in error, or whether each is limited, with respect to a review of the judgment here, to a proceeding in error.
That removal statute was enacted in 1915. Laws 1915, Ch. 112. At that time the only appellate proceeding provided for by law in this state for the review by this court of a judgment or final order of a district court was a proceeding in error the specific provisions for which were then found in Chapter 326, Compiled Statutes of 1910, comprising Sections 5017 to 5135 inclusive of that compilation, and are now found in Chapter 390, Compiled Statutes of 1920, embracing the same sections, with amendments if any, but numbered 6369 to 6397 inclusive. Those sections are and have been for many years a part of our code of civil procedure. The first section...
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...by proceedings in error as modified by Section 4328, supra. But counsel has overlooked the language of this court in State v. Scott, 34 Wyo. 163, 242 P. 322, 325, it was remarked: "It has already been held by this court, and we think correctly, that, since writs of error have been unknown i......
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State v. Morgan
... ... 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 ... 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, ... ...