White Automobile Co. v. Hamilton

• Decision Date: 08 December 1922
• Docket Number: 1092
• Citation: 29 Wyo. 109,210 P. 958
• Parties: WHITE AUTOMOBILE CO. v. HAMILTON, ET AL
• Court: Wyoming Supreme Court

210 P. 958

29 Wyo. 109

WHITE AUTOMOBILE CO. v. HAMILTON, ET AL

No. 1092

Supreme Court of Wyoming

December 8, 1922

APPEAL from District Court, Fremont County; HON. CYRUS O. BROWN Judge.

Action by The White Automobile Company against Ed. Hamilton and another. There was judgment for plaintiff and defendants appeal. Heard on motion to dismiss appeal.

Motion to dismiss denied.

G. J Christie and F. A. Michels, for the motion.

On November 3rd, 1921 the trial court made an order extending time to appellants to December 12th, 1921 within which to present their bill of exceptions. On December 3rd, 1921, upon motion of appellants, the court again extended the time within which appellants might prepare and present their record and bill of exceptions and for filing bond on appeal. The time for filing appeal record, under Section 6404 expired November 12th, 1921 and a motion for new trial was filed. This motion was overruled on February 10th, 1922. The proceeding should be dismissed for the reason that the record on appeal was not prepared and filed within the seventy-day period required by law and time therefor was not extended in the manner provided by law (C. S. 6404.) (Goodrich v. Big Horn Co. Bank (Wyo.) 188 P. 36.) Failure to so file such record is jurisdictional. (Kendrick v. Healey, 183 P. 37; McGinnis v. Beatty, 186 P. 121.) Direct appeal and proceedings in error are independent methods of obtaining a review, but the statutes and rules of court must be followed as to each. (Mitter v. Company, 191 P 1069.) Appellant was allowed seventy days after the entry of judgment to prepare and file his record on appeal; this was not done and no extension of time was granted for the filing of said record. This court is apparently without jurisdiction and the appeal should be dismissed.

M. C. Burk and G. H. Paul, contra.

The order made on November 3rd, 1921 granting appellant an extension of time and the subsequent order made on December 3rd, granting further extension of time for the preparation of record and bill of exceptions, was intended as an extension of time for filing record on appeal. The trial court well knew that the motion for new trial had not been ruled upon, that no exceptions could be taken until it had been ruled upon, and that no bill of exceptions could be prepared until exceptions had been reserved. The use of the words "Bill of Exceptions" was a mere clerical error. The court had power to extend the time for perfecting record on appeal (5864 and 6403 C. S.) It is proper to assume that the court, knowing the law, intended to extend the time under the authority conferred by the statutes. (Gilpatrick v. Perry, 26 Wyo. 538.) The motion to dismiss the appeal should be denied.

BLUME, Justice. KIMBALL, J., concurs. POTTER, Ch. J., did not sit.

OPINION

BLUME, Justice.

Judgment in this case was rendered in favor of the plaintiff on September 2, 1921. Notice of appeal was filed and served on September 12, 1921. On the same day a motion for a new trial was filed, but this motion appears never to have been acted on, and no bill of exceptions appears ever to have been presented to, or signed by, the trial judge. On November 3, 1921, without apparently any written petition therefor, an order was made and entered in said cause as follows: (Leaving out the caption and other matters not material here):

"It appearing to the court that it is impossible for the defendants to prepare and present to the court the bill of exceptions in the above entitled cause, and for good cause, within the time allowed by law for their preparation and presentation for approval,

It is therefore ordered that the defendants be and they are hereby given to and including the 12th day of December 1921 within which to present their bill of exceptions for approval by this court."

On December 3rd, 1921, a further order was made extending the time for thirty days to prepare and present the record on appeal and bill of exceptions in said cause. A document purporting to be a "record on appeal" was filed in the lower court on December 31, 1921, and specifications of error were filed January 9, 1922.

A motion has been made and argued in this court to dismiss the appeal to this court for the reason that the record on appeal was not filed in the lower court within seventy days after the entry of the judgment, and that no proper extension of time to do so was ever given. It is the contention of the appellants, defendants below, that the term "bill of exceptions," as used in the order of extension made on November 3, 1921, should be read and treated as the equivalent of "record on appeal," and that the error is merely clerical.

Since nothing which could have been properly assigned as ground for a new trial will be considered on proceeding in error unless it was properly presented...