Turnbough v. Campbell County Memorial Hospital, No. 4074
| Court | United States State Supreme Court of Wyoming |
| Writing for the Court | McEWAN |
| Citation | 499 P.2d 595 |
| Parties | Patrice TURNBOUGH, Appellant (Employee below), v. CAMPBELL COUNTY MEMORIAL HOSPITAL, Appellee (Employer below). |
| Docket Number | No. 4074 |
| Decision Date | 21 July 1972 |
Page 595
v.
CAMPBELL COUNTY MEMORIAL HOSPITAL, Appellee (Employer below).
Page 596
William D. Norman, Gillette, for appellant.
Thomas E. Lubnau, Gillette, for appellee.
Before McINTYRE, C. J., and PARKER, McEWAN, and GUTHRIE, JJ.
Mr. Justice McEWAN delivered the opinion of the court.
This is an appeal from an order denying the employee's motion under Rule 60(b), W.R.C.P., 1 to reopen a matter previously dismissed by the trial court.
The appellant-employee, while working for the appellee-employer, was injured on November 27, 1969. She received medical benefits and temporary total disability through Workmen's Compensation. On August 13, 1970, the employer objected to further payments and filed its notice of disapproval of a certain claim. On August 20, 1970, the district court set the matter for hearing on September 14, 1970. Apparently this hearing was not held. On August 9, 1971, the employee, through her retained counsel who had represented her during the periods relevant to this appeal, filed a motion for trial setting and requested the matter be set for hearing on August 26, 1971. On August 12, the trial court executed an order setting the matter for hearing on August 26, as requested by the employee.
Employee's counsel, Mr. Norman, did not appear for the hearing on August 26, 1971, but appearance was made by another attorney who, on behalf of Mr. Norman, requested a continuance. Counsel explained to the trial court that Mr. Norman advised him something had come up in Denver which required his presence there. Counsel did not know why Mr. Norman had to go to Denver, and the trial court remarked that if there had been some emergency certainly Mr. Norman could have advised counsel or the court. In any event, the court announced it would be in recess, whereupon, on September 8, 1971, the trial court entered its order denying the employee's motion for continuance and denied the employee's claim which, in effect, dismissed her application.
On September 24, 1971, the employee filed a motion to reopen the proceeding pursuant to Rule 60(b). The motion stated:
'* * * as grounds for this request the Employee has attached hereto the sworn affidavit of her attorney asserting that by virtue of an irreconcilable conflict of dates he was forced to be in Denver, Colorado on the date set for hearing of this matter and could not arrange for other counsel to prosecute the matter.'
The trial court heard the motion on October 7, 1971, and on October 18, 1971, entered its order denying the employee's motion to reopen said matter. It is from this order that employee appealed.
The employee argued that the discretionary power of the court under Rule 60(b) should be liberally exercised in furtherance of justice. She further argued that:
'In accordance with the provisions of Rule 60(b) a party may be relieved from a judgment or order because of the mistake, indadvertence, (sic) surprise, or excusable neglect of his attorney, provided what the attorney did or failed to do was excusable. Appellant maintains that under the circumstances of facing an intolerable conflict of hearing dates, arranging for appearance of other counsel to request a continuance and...
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England v. Simmons, No. 86-74
...a determination of whether the trial court was clearly wrong in denying this motion, Turnbough v. Campbell County Memorial Hospital [Wyo., 499 P.2d 595, 597 (1972) ]; and we cannot consider the contentions asserted by appellant in attacking the * * * judgment, Brennan v. Midwestern United L......
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Gifford v. Casper Neon Sign Co., Inc., No. 5534
...Wyo., 581 P.2d 193 (1978); Martellaro v. Sailors, Wyo., 515 P.2d 974 (1973); Turnbough v. Campbell County Memorial Hospital, Wyo., 499 P.2d 595 (1972); and Kennedy v. Kennedy, Wyo., 483 P.2d 516 (1971). In McBride v. McBride, supra, at 816, the court described the limitations upon the appea......
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Randolph v. Hays, No. 5841
...Supreme Court, No. 5841, January 11, 1983, re Order Denying Motion to Dismiss. See Turnbough v. Campbell County Memorial Hospital, Wyo., 499 P.2d 595 (1972). Several federal courts have treated motions to reinstate cases dismissed for lack of prosecution as motions made pursuant to Rule 60(......
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Carson v. Wyoming State Penitentiary, No. 86-76
...664 P.2d 121 (1983); McBride v. McBride, supra; Martellaro v. Sailors, supra; and Turnbough v. Campbell County Memorial Hospital, Wyo., 499 P.2d 595 (1972). Yet, the majority, in this case, allows Rule 60(b), W.R.C.P., to be stretched and expanded past those guidelines and become a substitu......
-
England v. Simmons, No. 86-74
...a determination of whether the trial court was clearly wrong in denying this motion, Turnbough v. Campbell County Memorial Hospital [Wyo., 499 P.2d 595, 597 (1972) ]; and we cannot consider the contentions asserted by appellant in attacking the * * * judgment, Brennan v. Midwestern United L......
-
Gifford v. Casper Neon Sign Co., Inc., No. 5534
...Wyo., 581 P.2d 193 (1978); Martellaro v. Sailors, Wyo., 515 P.2d 974 (1973); Turnbough v. Campbell County Memorial Hospital, Wyo., 499 P.2d 595 (1972); and Kennedy v. Kennedy, Wyo., 483 P.2d 516 (1971). In McBride v. McBride, supra, at 816, the court described the limitations upon the appea......
-
Randolph v. Hays, No. 5841
...Supreme Court, No. 5841, January 11, 1983, re Order Denying Motion to Dismiss. See Turnbough v. Campbell County Memorial Hospital, Wyo., 499 P.2d 595 (1972). Several federal courts have treated motions to reinstate cases dismissed for lack of prosecution as motions made pursuant to Rule 60(......
-
Carson v. Wyoming State Penitentiary, No. 86-76
...664 P.2d 121 (1983); McBride v. McBride, supra; Martellaro v. Sailors, supra; and Turnbough v. Campbell County Memorial Hospital, Wyo., 499 P.2d 595 (1972). Yet, the majority, in this case, allows Rule 60(b), W.R.C.P., to be stretched and expanded past those guidelines and become a substitu......