Wyoming Automotive Company v. Weisflog

• Decision Date: 13 March 1934
• Docket Number: 1834
• Citation: 47 Wyo. 32,30 P.2d 490
• Parties: WYOMING AUTOMOTIVE COMPANY v. WEISFLOG
• Court: Wyoming Supreme Court

30 P.2d 490

47 Wyo. 32

WYOMING AUTOMOTIVE COMPANY v. WEISFLOG

No. 1834

Supreme Court of Wyoming

March 13, 1934

Motion for leave to amend denied, April 20, 1934; 31 P.2d 679 Reported at: 47 Wyo. 32 at 34.

APPEAL from the District Court, Fremont County; C. D. MURANE, Judge.

Action by the Wyoming Automotive Company, a Corporation, against William Weisflog. There was a judgment for defendant and plaintiff appeals. The record failing to show service of notice of appeal, the proceedings were dismissed (30 P.2d 490). A further hearing was had on motion to amend the record.

Appeal dismissed.

The cause was submitted for the plaintiff and appellant on the brief of A. C. Allen of Riverton, and for the defendant and respondent on the brief of Harry S. Harnsberger of Lander.

The court being without jurisdiction to consider the merits of the cause, briefs of counsel have not been abstracted.

RINER Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This cause is undertaken to be brought here by the direct appeal method of review procedure. Unfortunately, the statute controlling the matter of this court's acquiring jurisdiction of the case, apparently has not been obeyed. The judgment sought to be reviewed was entered April 17, 1933. On April 20, three days later, the Wyoming Automotive Company filed its notice of appeal but there is nothing in the record to show service of the notice. More than 14 years ago, in Culbertson v. Ainsworth, 26 Wyo. 214, 181 P. 418 this court, speaking concerning this requirement of the statute (now Wyo. Rev. St. 1931, 89-4902), said:

"But the service of the notice within the time prescribed therefor after the entry of the judgment or order appealed from is also essential to give this court jurisdiction, if, indeed, service of the notice is not the principal act required to be done within the prescribed time in taking the appeal. The language of the statute is that an appeal must be taken by serving a notice in writing to such effect, etc., and, that 'said notice' shall be filed within said ten days. Clearly, therefore, the notice must be served within ten days from the entry of the judgment, and the fact of such service within that time must be shown by the record to give this court jurisdiction."

Since then, the court has consistently adhered to the views thus expressed. See McGinnis v. Beatty, 27 Wyo. 287, 293, 196 P. 311; Koch v. Koch, 41 Wyo. 450, 287 P. 85; Lindback v. Lackey, 41 Wyo. 493, 287 P. 320; Simpson v. Occidental Building & Loan Ass'n et al., 45 Wyo. 425, 431, 19 P.2d 958.

Additionally, it may be noted that the abstract of the record fails to comply with the requirements of Rule 37 of this court, and the cause is, for that reason also, subject to dismissal. Simpson v. Occidental Building & Loan Ass'n et al., supra. See, also, Brewer v. Folsom Brothers Co., 43 Wyo. 433, 438-9, 5 P.2d 283; Fryer v. Campbell, 46 Wyo. 491, 28 P.2d 475; In re St. Clair's Estate, 46 Wyo. 446, 28 P.2d 894.

The appeal must be dismissed.

Dismissed.

KIMBALL, C. J., and BLUME, J., concur.

47 Wyo. 32 at 34.

Original Opinion of March 13, 1934, Reported at: 47 Wyo. 32.

Motion for leave to amend denied.

OPINION

ON MOTION FOR LEAVE TO AMEND

Per Curiam.

On March 13, 1934, the appeal was dismissed because the record failed to show service of the notice of appeal. 30 P.2d 490. On March 21, appellant filed a motion for leave to amend the record by filing proof that the notice of appeal was served in time by registered mail. We assumed that the affidavit accompanying the motion stated facts showing such service, but it failed to show that proof of service was filed with the clerk of the district court, and for that reason the motion, on March 27, 1934, was denied without written opinion. We need not say whether or not there were other reasons for denial of the motion. The record was returned to the District Court on April 14, 1934. On April 16, the clerk received from appellant a stipulation signed by counsel for both parties showing that service of notice of appeal was made in time, and a certificate of the clerk of the district court which we assume is sufficient to show that proof of service was filed with him on April 14.

In Mitter...