Thomas v. Bivin, 1281

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtPOTTER, Chief Justice.
Citation32 Wyo. 478,235 P. 321
PartiesTHOMAS v. BIVIN
Decision Date21 April 1925
Docket Number1281

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

[32 Wyo. 479] 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 [32 Wyo. 480] 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...

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11 practice notes
  • Gillespie v. Board of Com'rs of Albany County, 1806
    • United States
    • United States State Supreme Court of Wyoming
    • March 13, 1934
    ...v. Co., 5 Wyo. 50; Bank v. Steinhoff, 7 Wyo. 464; Anderson v. Matthews, 8 Wyo. 307; Anderson v. Englehart, 18 Wyo. 196; Thomas v. Bivin, 32 Wyo. 478; Mitter v. Black Diamond Coal Co., 27 Wyo. 72. The motion should be overruled. KIMBALL, Chief Justice. BLUME and RINER, JJ., concur. OPINION [......
  • General Insurance Co., of America v. Ham, State Insurance Commissioner, 1959
    • United States
    • United States State Supreme Court of Wyoming
    • May 5, 1936
    ...does not show entry of the judgment nor compliance with Section 89-4906, R. S. 1931. Coffee v. Harris, 27 Wyo. 394; Thomas v. Biven, 32 Wyo. 478. The record is not certified as being true and correct. Company v. Thompson, 47 Wyo. 519. The record does not show that any judgment was ever ente......
  • In re Contas: Lion Coal Co., 1635
    • United States
    • United States State Supreme Court of Wyoming
    • September 9, 1930
    ...until the record on appeal is filed with the clerk of said court." Recognizing the force of this statutory provision, in Thomas v. Bivin, 32 Wyo. 478, 235 P. 321, 322, it was said, citing the section last mentioned: "This court obtains jurisdiction of the cause only when the record on appea......
  • Cottier v. Sullivan, 1817
    • United States
    • United States State Supreme Court of Wyoming
    • April 10, 1934
    ...v. Rock Products Company, 37 Wyo. 527; Woodruff v. Company, 38 Wyo. 70. The cases of Coffee v. Harris, 27 Wyo. 394 and Thomas v. Bivin, 32 Wyo. 478, holding that if the entry of the judgment is actually shown, the date may be presumed to be that of its rendition, will not aid in the present......
  • Request a trial to view additional results
11 cases
  • Gillespie v. Board of Com'rs of Albany County, 1806
    • United States
    • United States State Supreme Court of Wyoming
    • March 13, 1934
    ...v. Co., 5 Wyo. 50; Bank v. Steinhoff, 7 Wyo. 464; Anderson v. Matthews, 8 Wyo. 307; Anderson v. Englehart, 18 Wyo. 196; Thomas v. Bivin, 32 Wyo. 478; Mitter v. Black Diamond Coal Co., 27 Wyo. 72. The motion should be overruled. KIMBALL, Chief Justice. BLUME and RINER, JJ., concur. OPINION [......
  • General Insurance Co., of America v. Ham, State Insurance Commissioner, 1959
    • United States
    • United States State Supreme Court of Wyoming
    • May 5, 1936
    ...does not show entry of the judgment nor compliance with Section 89-4906, R. S. 1931. Coffee v. Harris, 27 Wyo. 394; Thomas v. Biven, 32 Wyo. 478. The record is not certified as being true and correct. Company v. Thompson, 47 Wyo. 519. The record does not show that any judgment was ever ente......
  • In re Contas: Lion Coal Co., 1635
    • United States
    • United States State Supreme Court of Wyoming
    • September 9, 1930
    ...until the record on appeal is filed with the clerk of said court." Recognizing the force of this statutory provision, in Thomas v. Bivin, 32 Wyo. 478, 235 P. 321, 322, it was said, citing the section last mentioned: "This court obtains jurisdiction of the cause only when the record on appea......
  • Cottier v. Sullivan, 1817
    • United States
    • United States State Supreme Court of Wyoming
    • April 10, 1934
    ...v. Rock Products Company, 37 Wyo. 527; Woodruff v. Company, 38 Wyo. 70. The cases of Coffee v. Harris, 27 Wyo. 394 and Thomas v. Bivin, 32 Wyo. 478, holding that if the entry of the judgment is actually shown, the date may be presumed to be that of its rendition, will not aid in the present......
  • Request a trial to view additional results

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