Thomas v. Bivin

• Decision Date: 21 April 1925
• Docket Number: 1281
• Citation: Thomas v. Bivin, 32 Wyo. 478, 235 P. 321 (Wyo. 1925)
• Parties: THOMAS v. BIVIN
• Court: Wyoming Supreme Court

235 P. 321

32 Wyo. 478

THOMAS v. BIVIN

No. 1281

Supreme Court of Wyoming

April 21, 1925

APPEAL from District Court, Hot Springs County; PERCY W. METZ Judge.

Action by Theodore H. Thomas against W. T. Bivin, administrator of the estate of X. Whiting, deceased. Judgment for defendant and plaintiff appeals. Heard on motion to dismiss. No briefs.

Fred W Wyckoff, for plaintiff and appellant; Thomas & Thomas, for counsel.

C. H Harkins, for defendant and respondent.

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

OPINION

POTTER, Chief Justice.

This case is here under the direct appeal statute and has been heard upon motion to dismiss, upon the stated ground that the record for the appeal was not prepared and filed in the district court within the time allowed by statute.

The "direct appeal" statute, so called therein, provides a method of appeal from the district courts to this court, "separate and independent" from the provisions for the review of civil and criminal causes on proceedings in error. Comp. Stat. 1920, Secs. 6401, 6415. It requires that the appeal be taken by serving and filing notice in writing to such effect within ten days from the entry of the judgment or order appealed from; that the appellant shall be entitled as a matter of right to seventy days from the entry of such judgment or order within which to prepare and file with the clerk of the district court "a record for the appeal," which time may, however, be "extended or enlarged" by the said court or the judge thereof, for cause shown. Sec. 6404. And, if the testimony or evidence be required for the appeal, it is provided that a complete transcript thereof shall be certified to by the official court reporter as being true and correct and as containing all the testimony, with all rulings in admitting or excluding evidence, or directing or refusing to direct a verdict; the same to be filed with the clerk of said court within seventy days from the entry of said judgment or order or within the time as extended by said court or judge. Sec. 6405. It provides also that in civil causes the clerk of the district court shall prepare "a record on the appeal," to consist of original or certified copies of pleadings, motions, demurrers, instructions given and refused, verdict and findings, certified copies of journal entries, and the notice of appeal, "securely attached together in their chronological order," and if a transcript of the testimony is prepared and filed and brought upon the appeal, it shall be attached thereto, together with exhibits and documentary entries therein contained or attached thereto. That when so prepared "the whole of such record shall be paged and numbered consecutively and shall be certified to by the clerk of the district court as true and correct and filed in his office." Sec. 6406. Provision is also made for attaching to said record the specifications of error when filed, to be authenticated by the certificate of the clerk and thereupon to become a part of the record. This court obtains jurisdiction of the cause only when "the record on appeal" is filed with its clerk. Sec. 6411. Thus something to be known and filed as a record on or for appeal is expressly provided for--to be certified by the clerk as "true and correct."

The judgment appealed from in this case, as shown by the notice of appeal in the record here, is the final judgment rendered upon a trial of the cause in the district court. It was rendered by the District Court in Hot Springs county on May 19, 1924. There is no affirmative showing as to the date of its entry upon the court journal, nor anything to show that it was not so entered upon the date of its rendition. It will therefore be presumed, under our decisions, that it was entered on that date. (See Hahn v. Bank, 25 Wyo 467, 171 P. 899, 172 P. 705; Coffee v. Harris, 27 Wyo. 394, 197 P. 649.) An application for an extension of time "to prepare a proper bill of exceptions" because of the inability of the court reporter to prepare a transcript of the evidence within the time required was filed in the office of the clerk of said district court on July 26, 1924, but nothing appears thereafter to have been done concerning it until August 4, 1924, on which date the district judge granted an order extending the time for filing "bill of exceptions" until and including September 24, 1924. And the record here is endorsed under the title of the cause as the "Record on appeal," and appears to have...