Sterling Lumber Co. v. Thompson

• Decision Date: 18 February 1935
• Docket Number: 1862
• Citation: 47 Wyo. 519,41 P.2d 264
• Parties: THE STERLING LUMBER COMPANY v. THOMPSON, SHERIFF, LUCAS, ET AL., INTERVENERS
• Court: Wyoming Supreme Court

41 P.2d 264

47 Wyo. 519

THE STERLING LUMBER COMPANY v. THOMPSON, SHERIFF, LUCAS, ET AL., INTERVENERS

No. 1862

Supreme Court of Wyoming

February 18, 1935

APPEAL from the District Court, Fremont County, C. D. MURANE, Judge.

Action in replevin by The Stanley Lumber Company, a corporation against James W. Thompson, as Sheriff of Fremont County, in which W. J. Lucas and others intervened. From a judgment in favor of the interveners against the plaintiff and its surety on the replevin bond, the plaintiff appeals.

Reversed With Instructions.

For the plaintiff, there was a brief by McConley & McConley, of Sterling, Colorado, and W. E. Hardin, of Lander, and oral argument by Mr. George E. McConley, Jr.

The record shows that appellant was the owner of the property in litigation, having acquired title thereto by a mortgage foreclosure. Federal Surety Company based its claim to the property upon its indemnity agreement with Scott and Curlee made at the time it executed a bond as surety for the faithful performance of their contract with the State of Wyoming. Appellant as owner was entitled to possession of the property. The judgments of interveners, Lucas and Myers against Federal Surety Company were void because the Surety Company had been dissolved on September 25, 1931, more than two months prior to date of said judgments. Moreover, the sheriff made no levy under said judgments and Lucas and Myers had no lien on the property. The intervener, Federal Surety Company was not the owner of the property but had only an equitable interest therein, under its indemnity agreement in evidence over objection of plaintiff. Agreements of this character are classified as chattel mortgages and governed by the same legal principles. American Surety Company vs. Scott and Curlee, 63 F.2d 961; Massachusetts Bonding Company v. Kemper, 220 F. 847; Lacy v. Maryland Cas. Company, 32 F.2d 48. The Federal Surety Company did nothing to perfect or foreclose its lien. Undetermined equitable estates, uncertain or contingent, are not subject to levy under execution. 23 C. J. 341. Section 89-2916, R. S. 1931. Appellant's chattel mortgage was filed prior to said indemnity agreement. Said indemnity agreement of Federal Surety Company was subject to purchase price mortgage, held by appellant. Transfer of a note secured by a chattel mortgage carries with it the security without any formal assignment or delay. Graham v. Blinn, 3 Wyo. 746. A conditional sale contract is good, although not recorded as against one with notice. Section 98-1901, R. S. 1931. Federal Surety Company, not being the owner of the property, even though sheriff made a good levy thereon, it would be subject to rights and liens of the appellant. 23 C. J. 341; Sec. 98-2916, R. S. 1931. Intervener Federal Surety Company has no claim against Scott and Curlee under said indemnity agreement. Appellant, being the owner of the property and entitled to possession thereof, should have been awarded a judgment. It is therefore submitted that the judgment should be reversed with directions to enter judgment for appellant.

For the interveners and respondents, the cause was submitted on the brief of John J. Spriggs, of Lander.

The appeal should be dismissed, because the record and abstract do not show service of notice of appeal, nor does the clerk's certificate show service of notice. Simpson v. Building and Loan Association, 19 P.2d 958, 26 Wyo. 214, 41 Wyo. 493, 43 Wyo. 1; W. H. Holliday Company v. Bundy, 289 P. 1094. No cause existed for an extension of time for filing record on appeal, hence the extension was illegally granted. It is only for a good cause that the court may grant such extension. Sec. 89-4904, R. S. 1931. Filing the record within the time is jurisdictional. Thomas v. Bivin, 235 P. 321; Coffee v. Harris, 27 Wyo. 394; Scott v. Rock Products Company, 27 Wyo. 527; Koch v. Koch, 41 Wyo. 450, and cases cited. The record does not show that the judgment was entered within the time. Hahn v. Citizens State Bank, 25 Wyo. 467. The record does not certify that any judgment at all was ever entered. Holliday v. Bundy, supra. While it is the duty of the clerk to certify records, it is the duty of appellant and its attorneys to see that the duty is performed. Campbell v. State Bank, 160 P. 333. The abstract of record does not comply with Rule No. 37. It fails to set out copies; to state the evidence in narrative form, or that notice was served, or that judgment was entered. It is clearly insufficient.

The specifications of error are insufficient to present anything for review. Peterson v. Le Faivre, (Wyo.) 12 P.2d 385. Points not argued in the brief are deemed abandoned. In re Goshen Ditch Company, (Wyo.) 293 P. 375. Inasmuch as the motion to dismiss will be considered in connection with points submitted on the merits, we again direct the court's attention to the specifications of error. Peterson v. Le Faivre, supra; Hocker v. Rackley, 216 P. 151; Brown v. Jerrild, 239 P. 796. It is settled that assignments of error not argued are waived. In re Goshen Irrigation District, 293 P. 375. Findings of the trial court on conflicting evidence will not be disturbed. Workman v. Pacific, 26 P.2d 961; Rudolph v. Johnson, 16 P.2d 152; Equitable Life v. Brennamen, 27 P.2d 755. Every intendment is in favor of judgment. Martinelli v. Luis, 1 P.2d 980; Outman's Estate, 28 P.2d 27. One who is before the court in several capacities, is bound by the judgment in all capacities. Emerson v. Company, 297 P. 392. The Sterling Lumber Company was an outlaw. It was not authorized to do business in Wyoming; it was attempting to operate through Scott and Curlee; it has no right to invoke the aid of Wyoming courts. Gould v. Company, 17 Wyo. 507; Company v. Canal Company, 31 Wyo. 191; Perkins v. Clinten, 295 P. 5. The foreclosure of its mortgage was on Armistice Day, a legal holiday, and a nullity. The indemnity agreement transferred the property to Federal Surety Company. It is entirely different from a partnership mortgage, which requires all members of a partnership to execute. Federal Surety Company was in possession of the property and could not be deprived of possession in the absence of court adjudication. U. S. F. & G. Co. v. Shirk, 95 P. 218. An assignment that the judgment is contrary to law is insufficient. If there are no exceptions to the instructions, they are the law of the case whether right or wrong. Harwood v. Scott, 211 P. 319. There is an abundance of evidence to support the judgment. Simpson v. Nelson, 208 P. 455; Casper v. Frost, 211 P. 370. The trial court had jurisdiction. Seals v. Banes, 27 P.2d 841. A collateral attack is restricted to the judgment roll. Application of Behymer, 19 P.2d 829; Pioneer Tel. v. State, 138 P. 1036. An action does not abate by dissolution of a corporation. Lusk Lumber Company v. Producers, (Wyo.) 299 P. 1044. This was a surety company, not governed by Chapter 113 of the Wyoming Revised Statutes of 1931, requiring deposit of money for the protection of its creditors. On appeal, a stay bond must be given. Section 89-4912, R. S. 1931. The process of this court is being abused by the evasion of statutory requirements, and the court has power to prevent such abuse. Pueblo De Taos v. Archuleta, 64 F.2d 811.

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

OPINION

RINER, Justice.

The Sterling Lumber Company, a Colorado corporation, as plaintiff, brought an action in replevin in the District Court of Fremont County, against the defendant James W. Thompson, as Sheriff of said county, to recover possession of one Osgood heavy duty, one yard, gas shovel, together with jacks and equipment, situate on certain lots in block 3 of the Town of Lander, Wyoming. Subsequently, W. J. Lucas, Albert Myers, and E. W. Clark, as Receiver of Federal Surety Company, requested and were given leave to intervene. A money judgment having been entered by the court in favor of each of the intervenors, against the plaintiff and its surety on the replevin bond, the United States Fidelity & Guaranty Company, said plaintiff has brought the case here for review by direct appeal.

We are asked, by motion, to dismiss the appeal proceedings for a number of reasons. It is said that the authentication of the clerk, attached to the record, fails to show service of the notice of appeal, and we are referred to the case of Simpson v. Occidental Building & Loan Association, 45 Wyo. 425, 19 P.2d 958. We find, however, that the clerk's certificate states, as pointed out in the cited case, it should properly do, that the record is "true and correct," and that said record includes therein the proof of service. In the Simpson case, the certificate undertook to enumerate each of the sundry papers comprising the record and to certify each; the proof of service was not included in the list thus certified and, hence, the certificate was defective. The simple form of certification employed in the case at bar and which the statute governing the matter prescribes, was not used. The point urged is not well taken.

The contention is presented that the authentication of the record is defective in failing to show the entry of the judgment from which this appeal was taken but, as already indicated it is plain that the clerk's certificate was one such as the statute requires, in fact employing its exact language. It is quite unnecessary that the certificate itself disclose the entry of the judgment, so long as the record to which it is attached supplies that information. It is insisted additionally that this fact nowhere appears in that document. We think otherwise. Upon examination, we find in the record a certification, by the clerk of the District Court of Fremont County, of all the journal entries in the case as "true and correct...