Underwood v. David

• Decision Date: 01 August 1900
• Parties: UNDERWOOD v. DAVID, ET AL
• Court: Wyoming Supreme Court

61 P. 1012

9 Wyo. 178

UNDERWOOD v. DAVID, ET AL

Supreme Court of Wyoming

August 1, 1900

ERROR to the District Court, Laramie County, HON. CHARLES W BRAMEL, Judge of Second District, presiding.

On motion to dismiss. The facts and grounds of the motion are stated in the opinion.

Motion granted and dismissed.

John C Baird, for defendants in error, for the motion, contended that there was no transcript filed with the petition, since the transcript was annexed to the petition and made a part of it; and that did not amount to a filing with the petition. It was also contended that the evidence was not in the record that unknown papers were absent from the record; and there did not appear to have been a motion for a new trial. For such reasons, it was insisted that the proceedings should be dismissed. The cases in the supreme court, where proceedings had been dismissed for like reasons were cited, or where the matter was discussed: (3 Wyo. 76, 105, 739; 6 id., 171; 3 id., 443; 6 id., 177; 1 id., 37, 41, 42, 187, 355; 2 id. 254; 3 id., 56, 335, 386, 144; 5 id., 427, 510; also, 108 Ind 235; 1 Mo. 232; 4 Utah 64; 10 id., 182; 66 Tex. 131; 31 Ill. 393; 17 Kan. 518; 24 id., 31; 34 id., 378; 65 Mo. 48; 83 id., 430; 41 Neb. 195; 1 Wash. 250, and many others.)

W. R. Stoll, for plaintiff in error, contra, contended that the transcript was properly filed; that the record disclosed there was no evidence in the case, but that the matter was determined on the record proper, and that nothing was missing of vital particular. That the question was simply whether the sale to plaintiff in error was superior to the sale to defendants in error. That the whole question can be decided upon the record.

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

The defendants in error move for a dismissal of the proceedings in error in this cause.

The first ground of the motion is that there is no transcript of the record. Attached to the petition in error is what purports to be a transcript of the record, and in the petition in error occurs the following: "A transcript of the files, records, and papers of said final order and judgment, and the orders and proceedings are duly certified to by the said clerk of the court of said district under the seal thereof, and are hereto annexed and made a part of this petition in error."

Counsel for defendant in error contends that this is not a compliance with the provisions of the statute (Sec. 4254) and Rule Eleven of this court requiring that there shall be filed with the petition in error a transcript of so much of the record as shall be necessary to exhibit the errors complained of. The proposition urged is that annexing the transcript to the petition in error and making it by allegation therein, a part of it, does not amount to a filing of the transcript with the petition in error. We think there is no merit in the contention. The distinction, if any, is altogether too technical. By being attached to the petition and in that manner filed, the transcript is filed with the petition as much so as if filed as a separate paper. We cannot perceive that the statement making it a part of the petition renders the separate filing of another transcript necessary.

Another ground upon which the motion is based is that there is no bill of exceptions; and it is insisted that the record discloses no question for consideration in the absence of a bill. Counsel for plaintiff in error, on the other hand, contends that the order complained of was made solely upon the record proper, and that a bill is not required for a consideration of the errors assigned.

No bill of exceptions, is contained in the record. A bill of exceptions is only required to make that a part of the record which is not otherwise a part of it.

If counsel for plaintiff in error is correct in his views that the record proper discloses all that is required for a determination of the questions presented by the petition in error, then it is evident that, upon the ground of the absence of a bill of exceptions the proceedings should not be dismissed.

These proceedings are instituted for the review of an order, made by the district court, vacating a former order confirming a sale to plaintiff in error upon an execution issued upon a judgment in a certain cause wherein Valentine Baker, et. al., were plaintiffs and Helen Jenkins, Edward C. David, James B. David, Alexander G. McGregor, and Alice Parshall, were defendants. The order appealed from not only vacated the previous order of confirmation, but adjudged the sale to plaintiff in error to be null and void.

The suit above mentioned was brought to subject certain real estate belonging to Helen Jenkins to the payment of judgments theretofore recovered against her by the plaintiffs in the suit. Edward C. David, James B. David, and Alexander G. McGregor, defendants in the suit, respectively, held mortgages covering various tracts of the lands in question. The final decree awarded personal judgments to each of the last above-named defendants, declared the mortgages of Edward C. and James B. David, respectively, to be first and prior liens upon the lands covered by them, and ordered the sale of all the property by special master commissioner therein appointed for that purpose. No sale was made by such commissioner; but three years after the entry of the final decree an execution was caused to be issued by the Davids, and in June, 1895, a sale was had thereunder, the sheriff of the county officiating, and the Davids became severally the purchasers, part of the property being bought by Edward C. David, and part by James B. David. That sale was confirmed.

A few days prior to any action on the part of the Davids to obtain an execution, the assignee of the McGregor judgment caused execution to issue thereon, and certain lands were levied on, being some of the same lands embraced in one or the other of the David mortgages. Notice of sale was published, but the execution was returned unsatisfied and without sale, for the reason as stated in the officer's return, that he had received notice that the district court had allowed an injunction to issue in the case of Helen Jenkins v. Alexander G. McGregor, and he therefore returned the execution not satisfied, by order of the court.

In June, 1896, the assignee of the McGregor judgment caused an alias execution to issue thereon, under which the sale was made to plaintiff in error of the lands in question, they being part of the same lands covered by one or the other of the David mortgages, and purchased by one or the other of them at the sale held under the execution issued at their instance in 1895. That sale to plaintiff in error was confirmed over a protest filed by Edward C. and James B. David. Subsequently they moved a rehearing of the order of confirmation, which was granted, the sale declared null and void, and the prior order of confirmation vacated; this last order being the one now complained of.

The foregoing facts are all obtainable from an inspection of the record proper. Some matters are incorporated in the transcript which are not part of the record, and cannot be considered. The order appealed from was made in the case of Valentine Baker, et al., v. Helen Jenkins, et al., already mentioned. We observe in the transcript the pleadings proceedings, orders, and judgments in a case wherein Helen Jenkins was plaintiff and Alexander G. McGregor, Albert Chapman, and Ira L. Fredendall were defendants. Chapman was the assignee of the McGregor judgment and Fredendall was the sheriff of the county. That case is probably the one wherein the injunction issued which prevented the sale under the McGregor execution issued in 1895. Without a reference to the record of that case, however, the court would have no means of knowing that to be the fact, nor is there anything elsewhere in the transcript to show what final disposition was made of that suit. That action was an independent one. Neither of the...