Blake v. Rupe

Dekmar, and Louis Ruth BLAKE (Defendants),

Appellants RUPE, Appellee (Plaintiff).

Thomas N. RUPE, Appellant (Plaintiff),

Thomas N. Dekmar, BLAKE and Louis

Ruth (Defendants).

Appellees

Nos. 5577. of Wyoming. Court

Supreme

Sept. 1982. Denied

Rehearing Oct.

Glеnn and (argued) Parker Harold F. Buck, Hirst Applegate, Cheyenne, signed & brief on of appellant behalf Blake. James E. Fitzgerald, Cheyenne, and F. Wood, P.C., Ludwig, Hames, Michael Ris & Denver, Colo., signed brief on behalf of Dekmar; appellant appeared Hames in oral argument. Alden, Hunkins

Raymond B. and Eric M. Jones, Jones, Wheatland, Hunkins, Vines & appellee Rupe. Kern, Cheyenne, David A. filed amicus curiae brief on Wyoming behalf and County Attys. support Pros. Ass’n in position of Blake Dek- appellants and mar. ROSE, J., RAPER,

Before and C. THOM- AS, BROWN, ROONEY and JJ. RAPER, Justice. appellee, Rupe, brought Thomas N. damages against appellant

tort action for Blake, Prosecuting and Attor- County Ruth ney County, alleging for Converse tortious with investigation conduct in connection prosecution perjury criminal and charge brought against Rupe. In the same action, Dekmar, appellant an investi- Louis County for the office of and Prosecut- gator ing Attorney County, Converse sought damages against him for joined alleged tortious connection with conduct investigation filing of the same against Rupe. charge perjury criminal re- Following by jury, trial verdict was $40,000 awarding Rupe turned actual the Natro- and Dekmar checked against Blake cheek. She $105,000 damages punitive records, where District Court $35,000 County na punitive $20,000 actual and place had taken Rupe’s trial Judgment against Dekmar. damages had to which he been Penitentiary the State accordingly. entered The evidence and incarcerated. sentenced judge the trial many errors While as to Blake or Dekmar dispute whether be appeal, can made disposition asserted personnel by penitentiary was informed pos- scope immunity, issue of the of on the During the Rupe pardoned. had been that Blake and her investi- by prosecutor sessed no records investigation course sug- at its own gator Dekmar. were checked. Cheyenne Capitol State timeliness of raised the issue of the gestion, have furnished Secretary of could State appeal we will notice of discuss Blake, Rupe’s discharge paper. of copy a VI) light of the dissents filed here- (Part made, investigation the basis of the in. a com- perjury that Dekmar filed requested timely the notice of to be We find he did on Octo- against Rupe, which plaint reverse and remand with directions and will 11, 1979. ber appellee judgment in favor of to vacate justice peаce appearance for At his of appellants Rupe and enter evi- hearing, Rupe presented preliminary a Dekmar. Blake and peniten- that when released from dence of he had been issued a form dis- tiary I Governor of executed the then charge of to initiation giving The facts rise with: which concluded Wyoming briefly Rupe will be narrated. tort action THEREFORE, “NOW, virtue of the By County was called Converse District vested in me as Governor authority jury duty 1979. In two criminal Court hereby direct Wyoming, I do State he, jurors, with other along murder cases Rupe, No. 7061 that the said Thomas N. interrogated general qualifi- relative to was Penitentiary of discharged from the be person disqualified to serve. “A cations on the Twentieth Wyoming, the State if juror he has been convicted of to act December, I do hereby 1951 and day 1-11-102, any felony.” Section W.S.1977. Rupe, Thomas N. fully restore the said being questioned as to whether Upon any which restoration citizenship, No. 7061 felony, had ever been convicted of a none citizenship shall become effective on including sat as responded, Rupe.1 Rupe a said date.” one, in both cases. a verdict of juror was, at the time of discharge The form of other, acquittal was returned. In the a discharge penitentiary, from the Rupe’s mistrial was declared. 19-1004, (af- then W.S.1945 pursuant § 7-13-107, W.S.1977)2: terwards § Later, through Blake learned a volunteer Wyoming Rupe informant been “The Governor of the State previously had shall, good upon receiving of a a statement felony issuing convicted a fraudulent — asked, juror jury there case at the selection as a and then “[i]s In one start of service category?” general qualifications jurors anyone were as- here that would fall in that Amongst setting negative response. certained. statutes out other There was qualifications, 1-11-102 was read to the § 7-13-107, 20, 1981, May W.S. panel. judge requested any- 2. Effective The district changed provide: felony was one convicted of come to the bench panel and let him know. member of the No application, “(a) Upon receipt of a written asked, you apparently Rupe so. did “[d]o governor may person convicted issue to a Roop why you Mr. know reason [sic] felony a state or under the laws of of a juror?” replied, could not serve as a He restores the States a certificate which United “[n]othing other than I asked to re- [was] pursuant rights 6-1-104 whеn: lost to W.S. city engineer,” lieved whom he was “(i) expires; or His term sentence employed. proba- satisfactorily completes “(ii) He case, jurors In the other advised all were period.” tion felony disqualify conviction them would ” convict, conduct of a whose term is about of Wyoming.’ State Section Arti- expire, V, Blake, from the Warden of the State cle Wyoming Constitution. as the Penitentiary, immediately issue a certifi- duly prosecutor, elected was therefore a convict; cate for the discharge of such charged with the proper person duty of such certificate shall in all cases restore initiating prosecutions criminal on behalf of the said rights convict his the same as Wyoming. the state of She therefore though pardon full granted. had been of her acting scope within the duties when The said certificate to be delivered to the investigated filing she and directed the convict the Warden of the Peni- State complaint against Rupe. at the

tentiary expiration of his term.” Another relevant justice statute before the Ill the peace 6-1-104, was § W.S.1977: We are satisfied that the touchstone au- person “A sentenced to the penitentiary of thority disposition for the basis our of felony, for a when sentence has not been Pachtman, this rests in Imbler v. annulled, reversed or is incompetent to be 409, 984,47 (1976). L.Ed.2d 128 U.S. S.Ct. an elector juror, or or to any hold office It was that a prosecuting there held state honor, state, of trust or profit within this attorney acting scope within the of his unless he shall have pardon; received a initiating pursuing duties in and a criminal but no pardon shall release a convict from in prosecution presenting and State’s the costs of conviction, unless so stat- immune from a civil absolutely case is suit ed therein.”3 damages under 42 19834 for U.S.C. § justice of peace dismissed the com- alleged deprivations rights. of constitutional plaint. takes sweep opinion specifically

Other facts will be set out appropriate. as rule of approves in and the common-law acting for a immunity prosecutor absolute

II of his In the use of scope duty.5 within the A county Imbler, and prosecuting point, in hasten to mention at this attorney we State of Wyoming prosecutor recognize that we the United States “act[s] the State of Wyoming in all reserved until another time Supreme felonies and Court misdemeanors arising in his of thе extent to which county” a final settlement [her] prosecutes and such aspects cases in the attaches to those immunity courts of absolute such county, 18-3-302, W.S.1977, in ef- which as- prosecutor’s responsibility § fect at the time the prosecution role of and sign involved in him/her the administrator “ * * * this case arose. prosecutions investigator. All We will further on in this shall be carried on in the by opinion prosecutor’s immunity name and deal with a authority of the State of Wyoming, performing and while his/her administrative ‘conclude against peace functions, dignity investigative appellee since 6-1-104, W.S.1977, 3. Section changed person jurisdiction was thereof to the within the provide: 1981 to deprivation any rights, privileges, or im- “(a) person munities secured Constitution felony A convicted of a is incom- laws, party injured petent liable to the in an juror, shall be to be an elector or or to hold law, equity, proper any honor, action at suit in or otter profit office of trust or within this state, proceeding purposes for redress. For the unless: section, “(i) any Congress applicable annulled; His this Act of conviction is reversed or “(ii) exclusively pardon; He to the District of Columbia shall receives a “(ill) rights pursuant His to be a statute of the District be considered restored W.S. 7-13-107.” of Columbia.” 4. 42 U.S.C. 1983: Goff, 5.See Yaselli v. 275 U.S. 48 S.Ct. “Every person who, any (1927) affirming under color of stat- L.Ed. 395 F.2d 396 ute, ordinance, custom, regulation, usage, appeals the court of discusses Territory length immunity judges, State or or the District the common-law Columbia, subjects, subject- advocates, grand jurors, petit jurors, or causes to be and wit- ed, any Economou, approved citizen of the United States or other in Butz v. nesses infra. fairer law enforcement.’ stricter and of action around frames his causes Reed, Cal.App.2d Pearson Rupe. prosecution Blake’s

phase of (Footnote (1935).” 44 P.2d tort action in Though Rupe’s the tenor of Pachtman, supra, omitted.) Imbler prosecution that Blake’s aspects all 422-424, 96 S.Ct. at 991- 424 U.S. at spiteful with motives be- anger based in at 139-140. 47 L.Ed.2d jury Rupe acquit- with which sat cause one defendant, Rupe allege does not ted the Imbler, without pointed out As further as such. prosecution malicious performance immunity absolute undermined would be duties prosecutor’s meantime, the in because of In the damages. of a suit the constant threat investigations by some separability of every had to make move prosecutor If a initiation of a prosecutor prosecution, on the of his/her work performance to be the situation before which we discern personal liability, potential of a basis us, point it is out the reasons important office would prosecutor’s public trust immunity. for absolute judgment would in that his/her suffer prosecu- immunity “The common-law light In the such constraints. colored the same considerations tor is based litigant’s is seen as a the nature of what that underlie the common-law immunities with expected such suits could be society, judges grand jurors acting within because of resentment frequency some include scope of their duties. These prosecutors. against defendants criminal that harassment unfounded concern ac- defending with such preoccupation Such cause a litigation would deflection of energy and divert the attention tions would energies public from his prosecutor’s urgent from the prosecutor away of duties, he possibility and that would law. De- enforcing the criminal duty of exercising shade his decisions instead of tak- every decision made and action fending independence judgment required of intolerable burdens. impose en could public expressed his trust. One court Imbler, absolute im As conceded in both as follows: considerations “ genuinely wronged crimi munity leaves public of one prosecutor ‘The office against redress nal defendant without civil which must be administered with cour- That prosecutor. or dishonest a malicious age independence. and Yet how can the lesser evil of the certainly would include prosecutor this be if the is made sub- It is not the office of prosecutor. negligent ject to suit those whom he accuses castigate in this case either this court this and fails to convict? To allow prosecutor County defend the Converse open would for unlimited way of the inves upon the action taken the basis harassment and embarrassment of the unhampered duty made. Her tigation most conscientious officials those deci prosecutive exercise profit who would There thereby. and must not be blurred concerns sion would in every be involved case the in the shad appear reluctance would possible consequences of a failure to away the fear of retaliation. To take ow of obtain a conviction. There would al- disserve the qualify immunity would ways question civil possible be prevent vigor public broader interest and prosecutor action in case the saw fit to * * * duty as a performance ous and fearless move dismissal of the case. The to the success public prosecutor, so essential apprehension consequences such justice system. the criminal great would tend toward uneasiness weakening immunity prose toward the fearless The rule of absolute and and has, Imbler, impartial policy which should charac- cutors since been reaffirmed Economou, 478, 510, 98 terize the administration of this office. Butz v. 438 U.S. 895, 2894, 2912-2913, 918- prosecutor The work of the would thus 57 L.Ed.2d S.Ct. Im- (1978). quoting and we have 919 there impeded would moved “ bler, common-law objective from the desired reiterated away ‘[t]he HOI immunity of a prosecutor also, 895D(1)(2),Restatement, based See Torts § 2d, solidly same considerations that underlie infra. doctrine is the com- estab- lished. The ballot and formal removal pro- mon-law judges immunities of grand more ceedings appropriate to en- ways jurors acting within the scope of their honesty force efficiency prosecutors. 422-423, duties.’ 424 at at U.S. 96 984 S.Ct. Heisel, (3rd Bauers v. 361 F.2d fn.9 Cir. 991-992, 47 Further, L.Ed.2d 128.” cert, 1966), denied 386 87 U.S. S.Ct. prosecutor is entitled for practi- stated and 1367, 18 L.Ed.2d 457. cal reasons absolute ac- immunity. His tivities are “activities were inti- [which] IY mately associated the judicial with phase Rupe instituted a against civil action process, criminal and thus were func- Blake the case eventually tried on to which tions the reasons for im- absolute charges negligence hiring his munity apply with full force.” Imbler, su- Dekmar, supervising appellant (2) negli- 424 pra, 994-995, at 96 U.S. S.Ct. at gence investigation Rupe, (3) in her in- Butz, quoted in supra, 98 U.S. at distress, tentional infliction of emotional at 2913. S.Ct. (4) violating Rupe’s right to privacy Court of Again, Supreme Virginia, quiet and the enjoyment by publiciz- of life Consumers Union States, of the United A prosecution. count for violation 719, 736, 1967, 1977, U.S. S.Ct. civil Rupe’s rights under 42 U.S.C. L.Ed.2d court in review- 1983 was dismissed trial judge ing all the situations which immunity plaintiff’s the close of evidence and did not damage existed, actions basis judg- declared serve as a of the verdict and again prosecutors ment. enjoy im- absolute

munity from damage liability, citing Im- claim response to Blake’s of abso bler, supra. Most recently, we find the rule immunity appellee lute ar prosecutors, again upheld in v. Fitzgerald,- Harlow gues gave the activities which rise to -, U.S. 102 S.Ct. L.Ed.2d his causes of action were within admin (1982), and Nixon v. Fitzgerald,- U.S. оf the investigative istrative and functions (1982). -, 2690, 102 L.Ed.2d 349 S.Ct. 73 county prosecuting attorney’s and office and therefore not within the immunities turn, Wherever we 6, with rare exceptions Imbler, The pronounced supra. plurality the absolute-immunity rule prosecutors opinion in Imbler closed with: prevails. Restatement, Torts 2d pro- 656 “ * * * to consider We have no occasion vides: require whether like or similar reasons public prosecutor acting “A in his official the aspects prose for those immunity capacity absolutely privileged is to initi- that cast him in the responsibility cutor’s ate, institute, investigative pro- continue criminal role of an administrator or ceedings. ^[******] By footnote officer rather ^{[*] [*] [*]} yy 33 to that than that of advocate.33 statement, it was said: significantly Comment b. “The privilege stated in this Section is protects absolute. It public the recognize pros- the of the “We that duties prosecutor against inquiry into his mo- his role as for the ecutor in advocate tives, and liability, even he though preliminary involve actions to the State probable knows that he has no prosecution cause for of a and actions initiation the institution of the ini- A proceedings apart prosecuting and from the courtroom. them altogether tiates for an required constantly, is in the improper attorney purpose.” such, as to make deci- duty course of cert, City Honolulu, County Spann, v. Orso and 56 N.J. 8 334 A.2d (1975); Haw. P.2d 489 U.S. L.Ed.2d 46. Cashen denied 423 S.Ct. violations alleged into the facts of inquire issues. variety of sensitive

sions a wide investigation, the Accordingly questions whether of the law. These include prosecutor's func- jury, part a whether to grand integral as an present a case information, and when to within tions, “unquestionably” whether included file an immunity dismiss an indict- regardless whether to prosecute, scope defendants, particular subject be the of a against may ment not motives call, other what also held that reference which witnesses The court lawsuit. as Preparation, both a present. closing argument evidence to a witness during process criminal bitch” likewise initiation of the a was “liar” and “son ac- trial, obtaining, even if may require immunity and for a covered absolute Neodesha, evaluating also, Knight of evidence. reviewing, tionable. See respect Kan.App.2d to some point, Department, At some and with Police Kansas decisions, Sampson no doubt func- as prosecutor (1980), citing P.2d 837 rather tions administrator than precedent. as an prop- a Drawing an officer of court. filed in case, complaint a In another er these functions line between seek- charging district court a Montana questions, but case present difficult this act- prosecutor for damages against the ing anticipate does not us to them.” require proba- maliciously, negligently, without ing added.) (Emphasis rights violation civil cause and in ble prosecutor It is does clear that office felonies plaintiff with various charging give absolute immunity alone prosecu- later dismissed which were performed gov- prosecutor but function immunity the upon Upon motion based tor. conclude, erns. of fur- We basis the civil court which judge of the district research, line, drawing ther had refused to dismiss. was filed complaint supervision of employment Blake’s supreme in the special By proceeding Dekmar, her conduct initia- preliminary to sought Attorney the Montana General Rupe, tion of and her con- prosecution immune. prosecutor ruling during prosecution, duct the course of came Justice v. Department ex rel. State perimeter quasi-judicial within Dist., 172 Eighth Judicial District Court of absolute immuni- prosecutorial function and (1976), it was held 560 P.2d 1328 Mont. her. ty should be afforded acts within the prosecutor that when maintain- filing and Imbler, scope of his duties courts have been many Ever since absolutely im- he charges criminal drawing the outer bound- process neg- liability, regardless of mune from civil ary prosecutor’s quasi-judicial probable or lack of cause. ligence of the prosecu- function ends. actions concept prosecu- that if a adopted court the tor the limits those here were outside precipi- of weigh possibilities the to tor must courts have found exist. We will review crim- litigation instituting his tating tort pertinent. some cases considered of those inde- his freedom and prosecutions, inal brought by An been witness action had a Mon- The pendence would be at end. against and his attorney a district assistant granted original relief because court tana slander, slander, of conspiracy abuse prejudice danger the of substantial of and process, privacy invasion of intrusion pros- the might forcing have resulted Rumsey, Kan. Sampson seclusion in where, a matter ecutor to defend a suit as 191, (1977). P.2d the App.2d There law, liability cannot be established. of court, upon confirming privi- that absolute attоrney all of the district lege public policy, founded on Where acts extended function, parts prosecutorial the in immunity public to those in service intrinsic motive, of a lax rule regardless adopt the administration laws. do- While so, over lawless ing society be to turn to the the court referred to some of the would anyone a of protected by creating part It dread on functions involved. declared Powell v. prosecute. upon prosecutors a to who would dare duty there was H03 Okl., Ind., Seay, (1976). 553 P.2d 161 The Pearcy, Foster v. 387 N.E.2d 446 cert, (1979), 960, in a denied prohibition Powell allowed writ of U.S. S.Ct. plaintiff L.Ed.2d in a avoid a expensive burdensome and trial. ‍‌‌‌‌​​‌​‌​​​‌​‌‌‌‌​​​‌​​‌​‌‌‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌‌‌‍against prosecutor defamation suit a and The in attorney, district Torres v. Glas- (1) deputy alleged his that he had been gow, 80 N.M. 456 P.2d 886 dur- a charge indicted on narcotics which was ing the course of investigation his caused reasons; procedural (2) later dismissed for issuance a search warrant for the search while the indictment was pending, pros- of a house child, seizure of a in deputy report- ecutor’s advised a newspaper connection with a charge criminal of false $18,000 plaintiff er that the had grossed a imprisonment against the child’s father sales, week heroin part a na- complained the child’s mother. The ring tion-wide heroin and the indictment that, court held even though corpus habeas investigation; was the result of two months have would been the be- remedy correct prosecutor negligent cause a child not being property is not the hiring supervising deputy. his The proper subject warrant, of a search absolute court held: “* * * immunity required damage dismissal of the prosecutor, The as an elected law action which followed. official, a duty enforcement has to inform the public regarding cases which are Robinson, In Candelaria v. 93 N.M. in his office. must be able to pending He 606 P.2d 196 (1980), an assistant district independent judgment, exercise his best attorney prepared report a regarding factors, serving as of other irrelevant investigation of murder case plain- advocate and communicat- State’s tiff law officer at request of the district events to the developments such attorney. report The investigation stat- public. granted Were prosecutor ed plaintiff that the highly improper used qualified of lawsuits immunity, threat gestapo-type tactics in the course of the against him would undermine the effec- investigation. court held that absolute prevent of his and would tiveness office immunity from a civil suit for damages was the vigorous performance and fearless accorded district attorneys defama- proper his is essential to the duty tion reasonably related to communication functioning justice sys- of the criminal institution, preliminary to, in during public prosecutor’s tem. ‘The trust of of, the course a part as office would suffer if he were constrained proceedings in which the attorney partici- in making every decision the conse- pates counsel. though prosecu- Even quences potential terms of his own closed, tion referred to had been one damages.’ in a suit for Imbler v. liability attorney’s district duties was to advise Pachtman, supra, 424 U.S. 424— requested. sheriff when request in- S.Ct. at 47 L.Ed.2d at 140.” volved one of underlings being the sheriffs alleged negligent hiring As to the his considered for termination. The material held a well deputy, the court press was released at a conference. The known common-law rule that an official court held it proper and within absolute im- discretionary enjoys who has functions immunity public to inform as matter munity scope for acts within the public interest of his official acts where employment and will not be held liable for they scope were within the his duties. errors, de- mistakes unwise also, Tatsch, See 446, Adams v. 362 68 N.M. the cisions in exercise of that discretion. (1961), super- P.2d held employment 984 and Matson v. The court that and Margiotti, a employees discretionary vision of his is (1952), 371 Pa. 88 A.2d 892 in cited function. support. As the investigative phase, to the

court pointed out that it the county was 24 County, In Kuchenreuther v. Whatcom attorney’s in duty a to prosecution (1979), investi- WashApp. 604 P.2d 499 after gate inquire information, and into the prosecuting facts. dismissal of an the

1104 acts filed, examine then we must the other prosecution sued malicious attorney was the particular in that are related to alleging they he: to determine if outrage and as an As held role advocate. prosecutor’s wantonly, maliciously, wrong- “willfully, (3rd Kleindienst, 599 1203 v. F.2d Forsyth prose- fully, outrageously and abused cert, 453 101 1979), and Cir. denied U.S. acted outside of processes cutorial is prosecutor a improper perverted in an and 69 L.Ed.2d process said S.Ct. the al- a immune where accomplish absolutely result outside the from suit manner to to legal complaint solely process.” lawful 604 relate purposes legations case. a initiating P.2d at 500. criminal presenting and The court said: proper was Summary judgment held to be “* * * attorney prosecuting a prosecutors’ immunity grant under absolute To to pros- immunity over his decision performed acts in connection with the absolute subjecting while grants ecution. Iowa likewise this broad initiate a prosecution informa- immunity prosecutors. securing absolute to Gartin liability him to County, v. Iowa 281 make that decision App., Jefferson N.W.2d to necessary tion (1979), supreme rehearing court denied. decision- foster uninformed only would for needless making potential and the then, see, that We can since Imbler the *” * * 599 F.2d at 1215. actions. high extending state courts have been boundary to a extent. considerable Attorney held that Gener- Forsyth In it was likewise, though federal have done courts absolutely immune not be al Mitchell would probably uniformly not as as have state warrant- he authorized a suit unless courts. of a func- wiretap performance less judicial proc- to the intimately related tion (10th Lanning, In Atkins 556 F.2d was clear as there not ess. The record state filed 1977), prosecutor felony Cir. initiated, had a case been criminal whether charges against wrong per- mistake that de- remanded for the circuit court so person having son. The arrested after sued district court. termination jail been held in or a mental institution for Citing Imbler, some 33 days. it was held Wilson, D.C.App. Apton that the had prosecutor immunity absolute summary was on held F.2d spite of the misfire. It explained by Attorney General disposition work investigative court that the done States, assistant did deputy United case preparing presenting directing immunity have absolute not prosecutor part judicial func- ac- police investigative District Columbia granted tion for absolute is immunity which being plaintiffs to innocent tivity led leeway perform and that some needed deprived arrests up in mass swept case, assembling function of State’s Amendment rights. Fifth Fourth and including investigation. preliminary acting as advocate they There were within duties re- only but their prosecutors apply The federal courts must government to a of federal disruption lated functional whether analysis determine quali- were entitled to a operations and prosecutor’s fall the bounds acts within Mulhearn, 498 immunity. fied In Guerro v. “judicial” opposed “investigative as (1st 1974), it was held F.2d Cir. Meagan, administrative” duties. Ross v. summary disposition there could be no 638 F.2d (3rd 1981). Cir. This deserves in the face immunity the basis absolute us, analysis. In the case before the real con- allegation prosecutor an of Rupe’s purported damages cause was the spired police perjured with officers to use filing of the him complaint charging with obtaining a warrant. testimony in search perjury. “judicial” process That is a involv investigato- The act there was related ing the negligence courts. While in investi district rather than role of the gation ry negligence and other acts of only qualified entitled him to attorney as alleged misconduct are a basis for award stated, because, immunity damage, complaint once the criminal “[i]t

H05 wrong against plaintiff. would be to hold the officers liable Under such a factual sit- Attorney exempt.” but applying State’s uation and the functional test— 1256, quoting Brautigam, F.2d at Lewis v. not the official status of the prosecutor— (5th 1955). 227 F.2d Cir. the court held that there would be no abso- immunity prosecutor lute if the acting leaking Deliberate of false informa purely in a investigative or administrative prosecutor plaintiff tion a about a to capacity, which the facts seem to indicate. damage political if in fact prospects, occurred, is outside the rationale for abso citing In some of the foregoing not cases most, immunity subject lute and at to a point disposition here, in we do only so qualified good-faith immunity. Helstoski v. for purposes illustrating what the courts Goldstein, (3rd 1977). 552 F.2d 564 Cir. doing trying to bracket the scope of There, the circuit court remanded for com immunity and we do purport by citation pletion discovery. to decide various unrelated situations in advance. We Hampton City only decide the now Chicago, Cook case be- Illinois, County, (7th 1973), 484 F.2d 602 fore us on its Cir. facts and circumstances and cert, denied 415 U.S. S.Ct. 39 use authority pertinent thereto. L.Ed.2d 471 it was held on a motion terms, Stated in universal from all

to dismiss that the state’s had no attorney of the foregoing, we conclude and hold that immunity absolute for planning to use ex- to the extent the securing of information is cessive and deadly executing force and then necessary prosecutor’s to a decision and illegal by police raid officers where the preparation to initiate a purpose prosecu was to “create criminal fear and terror in tion, the the Black shield of absolute at Community.” immunity taches and at point that аs to inquiry Spokane In Dodd v. County, Washington, immunity is concluded. It is not our intent (9th 1968), F.2d 330 Cir. it was held on a that this rule be so stingily applied that motion to dismiss that there is no absolute prosecutor feels a suit for threatened immunity claims for damages against a damages if investigation his/her is too thor prosecutor on the ground conspired that he ough; objectives sought otherwise the with officers and subjected plaintiff or immunity seriously impaired would be violence, threats of actual assaults and oth- not an area in which a destroyed. This is er punishing treatment in order to force drawn, other than sharp line him testify falsely against an accused Taking into consid test of reasonableness. a criminal trial. To the contrary, absolute many perimeters eration the drawn immunity of prosecutors would support dis- courts, federal the facts of this state and missal of a complaint for damages charging crim initiating case that before disclose prosecutor that the perjured used testimony against Rupe, and in order prosecution inal plaintiff’s to obtain conviction that such event, necessary, it was prepare allegations related to prosecutor’s ac- prosecute, making the decision tions in his role as an advocate associated received Blake check out the information with function. Brawer v. Ho- a convicted felon. That Rupe rowitz, 535 F.2d (3rd 1976). Cir. inadequate negligently investigation was good A example of type of adminis- probable undertaken without spitefully trative role prosecutor which carries no to the of immu question cause is irrelevant absolute immunity is found in Mancini The abso necessity once the is shown. nity Lester, 630 (3rd 1980). F.2d 990 Cir. There defeats the action at immunity lute a lieutenant prosecutor’s detective in a of- 419, fn.13, 96 Imbler, 424 U.S. outset. fice against filed an action the county pros- at 989. S.Ct. ecutor seeking him to damages forcing us, the facts before In consideration of resign on the charges basis of false worthy weight it is postscript, preventing obtaining thereafter him from what Rupe was because of job. prosecution new There was no criminal action 1106 631, Vilas, 483, a 16 40 L.Ed. perjury by considered 161 U.S. S.Ct. pro-

the prosecutor judicial a spective arising proceed- in juror, attorney who had been 780 where an a to disclose conviction of a by failure in representing postal employees certain investigative performing In felony. postmaster sued the collecting salary claims of the function, integrity judicial proc- he in- circularized general for libel because stake, so not we have an ess was at do employees that no at- postal formation to involving the a initiation of investigation collect certain sala- torney necessary to was prosecution a but re- prosecution, criminal claims, adjustment authorized Con- ry alleged in-court We sulting perjury. from postmaster held that the gress. The Court a of the greater therefore find involvement and his mo- general immunity had absolute judicial investiga- function than the usual questioned.8 tives not Candela- could preparation tion in for ini- prosecutor a Robinson, it was held supra, proper ria v. process filing tiation the criminal to, release, prosecutor press for a inform To this complaint and trial. we add public interest of public as a matter fact purposes exercising per- that for a duties. scope official acts within it is emptory challenge, probably important defamatory, Even if which it was it was if prosecutors prospective know a Restatement, not, 656, see c to Comment § juror crime, was ever convicted of even a 2d, However, supra: Torts though pardoned. question- ing in the case before us did not hone that “c. the law. absolute Policy of fine. This be a matter of future con- privilege public prosecutor of the under cern prosecutors. in this is based rule stated Section law policy gives of the same

On the matter news media announcing prosecution liability public prose- release7 to a immunity Rupe, that such a we hold release is within who, a cutor in the course of criminal perimeter prosecutor’s outer au prosecution, publishes defamatory matter Matteo, thority and discretion. In Barr v. persons, or third about the accused U.S. S.Ct. L.Ed.2d b.” which see Comment (1959), an official of a federal was agency Section 586: held absolute immunity to have from a libel “An attorney absolutely privi- at law is suspending government action in employees leged defamatory publish matter con- announcing by way of a press release cerning pre- another communications doing for so. It reasons was held that judicial liminary proposed proceed- to a the press release was an appropriate exеr of, ing, during in the institution cise within the scope of discretion of, a duties, part pro- course and as a a matter of public officer’s wide ceeding participates and concern. See which he Spalding interest also as coun- tentatively juror 7. The release as reflected “He seated as a news news media was also clippings: first-degree trial of murder Dennis Casper, Derrick Parkhurst ended Douglas city employee “DOUGLAS —A has jury Sept. 20 before mistrial selection charged perjury, been with the Converse completed. County attorney’s Thursday. office said “Prospective jurors in one are told statement charge against Douglas Rupe, Thomas “The beginning if at the of selection have been building inspector, Rupe states that was con- felony, are disabled or are felony convicted of a prison victed of a and served sen- qualified.” over-age, they say are not tence but did not so when interviewed jury duty, spokesman county for the attor- Cahalan, (6th F.2d 681 8. See Walker v. Cir. ney’s said. office cert, 1976), denied 430 U.S. S.Ct. felony quali- “Persons convicted of a prosecutor 52 L.Ed.2d where was not jury. fied to serve on a immunity press granted “Rupe release jury panel absolute was a member of the 1979 nothing pending Eighth made after there was Judicial District. He served on jury August prosequi, panel first-degree to which because a nolle case mur Gorman, pertained. der of Donald who found innocent sel, if it some to proceed- prosecute, has relation the the decision to nor does he have ing.” responsibility the of presenting the State’s ease for determination. His does role not to Comment b 586: § judi- have the intimate association the with Prosecuting “b. attorneys. The rule cial function as thrust upon prose- that the stated in this applicable Section is to at- cutor. Accordingly, courts almost torneys who in participate pro- rule unanimously apply qualified a of im- ceedings, whether civil or criminal. It to one munity position. in Dekmar’s protects prosecuting attorney a as well as complained test is whether of action a defense attorney in a criminal action. in faith good was taken with reasonable too, So protection affords to a prosecut- grounds all light therefor ing attorney conducting while an investi- circumstances. gation grand jury, before a is and this Different than in the case proseсutors, true irrespective of the outcome granted police law has never common investigation.” an Pierson v. immunity. officers absolute also, See Foster v. supra. Pearcy, 1213, L.Ed.2d Ray, 386 U.S. 87 S.Ct. We likewise so hold. For the same rea- (1967). is That case one of root sons objection we find no to the prosecutor authorities for this court’s in Ro decision informing Rupe’s employer charges Riverton, City darte v. 552 P.2d Wyo., had been against filed Rupe.9 The employ- to upon Rupe rely. seems er had a to right know. that, Rodarte decided in a civil action hiring investigator Blake’s wrongful imprisonment arrest or involv discretionary. arrest, Foster Pearcy, supra; ing a warrantless officer police Restatement, 895D(3)(a), a 2d, § Torts had as defense that he acted in faith good infra. cause, question. probable jury and with a Blake’s motion to dismiss should have not in before us have a We do the case granted. been ap warrantless arrest a to but summons10 upon complaint. Rupe a pear issued V custody and no time in or spent not arrested Dekmar, As to the case was submitted to jail. the jury upon the plaintiff’s (1) claims of Filling also Station Rupe cites Consumers maliciously instituting proceedings criminal Durante, Wyo. 333 P.2d Company against plaintiff; (2) negligently or reck- position to his that Dek- (1958) support lessly conducting his investigation prosecution by this fil- participated mar perjury charges against plaintiff; inten- prob- ing complaint against Rupe a without tionally or recklessly causing plaintiff se- cause, one of elements of malicious able distress; vere emotional (4) by publiciz- and point is prosecution. That case not in ing matters of a highly kind an offensive to civil allegedly it involves an malicious ordinary man concerning private life of private person. Mali- action initiated the plaintiff. an action available prosecution cious is not official. The against law enforcement The liability or of Dek- non-liability out in mar elements such an action are as set is based a different rule than that 653, Restatement, Torts 2d: applicable to Blake. As an he investigator, performs police investigative pro- who or person functions. “A initiates private It is not his function proceed- to enter into make the institution criminal cures 577, Restatement, 9. Section Torts 2d: to be on land or chattels in knows exhibited subject possession is his or under his control “(1) defamatory Publicаtion of matter its is liability publication.” for its continued intentionally negli- communication gent person act to one other than the de- of a war- 10. A summons be issued instead famed. county requested by rant arrest when “(2) unreasonably intentionally One who attorney. Rule W.R.O.P.J.C. defamatory fails to remove matter he deter guilty liability who the threat of such would ings against another is charged subject liability willingness execute his with offense office prosecution for malicious if re- the decisiveness and ment and for tion to a of Rhodes, ance of the rule L.Ed.2d 90 (1974): The evidence further been developed charges, The press releases were facts view is he was in this he is cious defense is premised upon bility of ser, Dekmar in its perform “* * * This There is ings On the other favor “(a) ly “(b) the mistakes he investigation Torts distributed prosecutor, prosecution, threat of suits entitled necessity he without official instance, told to do genesis, supported by his of law enforcement officers [T]he is not a offender risk of initiates purpose § public their the accused.” proceedings is best articulated in Scheuer public indicate that special responsible U.S. immunity common to to probable on two official hand, as well. pp. being official 28 A.L.R.2d 646 and Pros- not give absolute other than that of duties. The Dekmar. private person.11 permitting officials body 837-838 justice, Blake, make indicates procures Annotation, conducted Dekmar claims that mulcted in mutually dependent law functions have terminated in for prepared by cause measure apparently personal he of law which the state immunity. officer soon the prosecutor. S.Ct. (4th that most of the proceed- background the harass- prosecution recognized free from ed. did what perform- for mali- Civil damages liability. primari- lodging protec- rested, of the Blake. bring- Blake 1971). This has His lia- v. 498-499, tion actions: ‘The expression privilege the effective or emolument it is better to risk some injury from such error have some faithfully perform the duties of their fied —for they may' err. fices. or act at 564, 572-573, 79 S.Ct. in the somewhat assumes public. when police, See enforce laws for the this L.Ed.2d 1434 interest “* * * govern.’ Dalehite quired make officials, who do not act to U.S. 1427 seems ^[*] outset, ‘it is not a tort for also general proposition succinctly, (1953) (dissenting opinion). decisions when to they Implicit in the idea that officials legislators [I]t requires this pervade Mr. аll. Spalding whether their n of a immunity that one n S.Ct., public are made 73 functioning (1959), the Court Justice In Barr v. important public of exalted acts, policy S.Ct. ^[*] decisions and action goes parallel privilege at 637.” officers from defama- governors, mayors v. v. United concept is a implement good. —absolute analysis: judges, policy they Vilas, Jackson 956, 979, designed to aid on to than of the protection do not ^[*] error Matteo, recognition government context 1335, 1340, 3 office, is not a are needed or note, government.’ not to consideration assume who ^[*] States, The immunity fully expressed observed, 97 L.Ed. decisions 360 U.S. U.S., ‍‌‌‌‌​​‌​‌​​​‌​‌‌‌‌​​​‌​​‌​‌‌‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌‌‌‍at possible even but fail to of the decide Public badge public quali- ^[*] stat- and 346 of- or to to badge had the While Dekmar (1) injustice, particularly rationales: facilitate the execution faith, deputy sheriff to subjecting in the absence of bad duties, acting capaci he was not required, by is liability an officer who legal responsibility His must be tested obligations position, ty. of his discretion; exercise with re- danger performing that what function he was available, injustice prosecutor 11. Even if Dek- hold the im- such an action were obvious complete investigator mar he liable. There must would have a defense in that mune and only upon symmetry acted not are advice counsel but at treatment. Police officers Blake, prosecutor. Boyer required peril predict v. at their whether direction of not Bugher, Wyo. (1912); prosecutor’s Re- P. 171 and direction were law- advice statement, be an Torts 2d ful. It would

H09 spect to plaintiffs claim. His office was The rule of simply Scheuer more stated that of to be that a public hired official investigator county enjoys quali- fied if he in immunity good faith prosecuting attorney to entertains investiga- do such a reasonable belief that his are actions law- tive might work as assign. she There can ful, notwithstanding a subsequent be no question but part that he is a not; they determination that courts will executive of government. branch His unfairly hindsight assessing use offi- duties on no occasion ever would rise to cial challenged actions in litigation. Apton those of quasi-judicial such as attach to a Wilson, supra, 506 F.2d 83. prosecutor when involved preparing in and qualified That rule of immunity po- initiation of criminal prosecution. lice, including investigators other mem- The Supreme Court in Scheuer fashioned branch, bers the executive a generally a rule we applicable hold to Dekmar: accepted doctrine. Atkins Lanning, su- “* * * qualified immunity is availa- [A] Meagan, pra; supra; Ross v. Forsyth v. ble to officers executive branch of Kleindienst, supra. government, the being depend- variation The rule as we have stated it has arisen scope ent the of discretion and re- principally in claiming cases a violation of sponsibilities of the office and all the civil the rights under federal Civil Rights as they reasonably circumstances ap- Act, However, 1983. we adopt U.S.C. § peared at the time of the on action which as equally applicable allegedly to the tor- liability sought is to be It is the based. public tious conduct of officers against existence of grounds reasonable for the whom damages sought. We find it belief formed in light time and of apply and much easier to singularly simple circumstances, all the with coupled good- than the in many complexities found belief, faith quali- that affords a basis law of torts. It not inconsistent general is fied of immunity executive officers for 895D, with of in the rule law set out acts performed in the course official Restatement, 2d, explained by Torts and as *” * * conduct. accompanying comments: Dekmar had discretion no or responsibility “(1) Except provided as in this Section a in making public the decision to is not immune from tort prosecute. He officer was a layman liability. not acting as one in learned law, acquainted with the “(2) nuances of within the public acting A officer

whether had Rupe pardoned.12 general been of his is immune scope authority investigation liability had been for an act or omission by his tort conducted su- exercise or perior involving the of a and there is no that he showing had legislative function. reason question her professional [Prosecutor] skills. There is within the question “(3) acting no A officer public that Rupe convict- of his is not sub- general scope authority ed of a felony and that he did not mention ject liability for an administrative that to tort general fact upon questioning of the if act or omission fact, jury. according to Rupe’s own tes- engaged in timony, “(a) he because was not he is immune aware of document function, discretionary his civil exercise rights had been restored or a discharge certificate of produc- not ex- “(b) issued until and does privileged he is ed at the preliminary or hearing. privilege, ceed or abuse successfully Rupe felony In order to determine conclud- whether had convicted of a who pardoned, necessary through period probation. appeared been it was sift to be ed a That law, discharge eventually recog- inconsistency statutes. His an in the document did not 1981, fn.2, “pardon.” supra. use filing the term time of At the nized the amendment complaint against Rupe perju- pardon criminal thus been unusual automatic has ry, Wyoming procedure concurring pardoning in the eliminated. As indicated prisoner discharge opinion, unique. on Rupe was somewhat lawfully pardoned whether given open No is not similar treatment was the criminal and shut. negligent one he was actually was not tortious be- of whether

“(c) his conduct a reason- he not. The standard of what negligent per- cause was or like responsibility.” person would do under ably prudent formance his cir- applies. One circumstances (e) im- discussing Comment after absolute he be in a may acting cumstances is that explain: goes munity per- rather professional capacity than situation, “In second the existence This means forming ministerial acts. ‘immunity’ may be treated mean- that, he held lawyer, like the doctor is is not liable if he officer knowledge higher degree skill and to a ac- his determination and took the made expertise, but also that training in party good tion that harmed the other substantially wider dis- may given he be faith, effort to do he honest what knowledge exercise of that cretion exigencies before him re- thought may he held expertise and that be Here, him, quired. against in a suit judgment.’ a ‘mere error not liable for good faith is an issue fact before the expressed saying is This sometimes always possibility court and there is action that is that he is liable incorrect may make an misleading unreasonable. It palpably it. It regarding determination questioned productive speak this of confusion properly whether is more in either of immunity privilege. immunity liability called an If the to tort against for an action the officer is inten- these situations.” tional tort which the officer knows Cundall, Wyo., Wendling This imposing that he is on the harm other expressed an 568 P.2d has so, substantially party or certain do being “good definition of faith” as Illinois properly privilege. this could be called a honest, intent,, the condition of lawful negligence, But if the action is for of fraud and acting knowledge without act, acting failing or thus an creating to assist in a fraudulent without interest harm, unreasonable risk of it would scheme, together with otherwise unlawful immunity. called an There are no privi- Ivinson, 4 in the definition set out Cone action, leges in a since the negligence (1893): Wyo. 33 P. 31 issues involved are in the issue of treated * “* * in an honest ‘Good faith consists negligent. whether conduct was For taking un- any intention abstain this reason it appropriate seems treat another, advantage even of conscientious as immunity defense an in both situa- law, or technicalities of though forms a tions. It is limited but it is immunity, with an absence of all informa- together good as as broad faith. facts which would render or belief of tion situation, “In a third existence of the ” transaction unconscientious.’ ‘immunity’ mean is that the officer hardly “reasonable” needs While the term not if liable his determination to take or has to do so defining, this court undertaken not to take the action In was reasonable. State, 505, 516, Wyo. in Claussen him, action is against tort there thus ex- P. wherein another issue of fact—the reasonableness having facul- plained from Webster “as decision, of is acting good if he rational; reason; reason; governed by ty of faith. The of fact not deciding trier reason; influence of think- being under the right he whether in his determina- acting rationally, or ac- ing, speaking, or a reasonable tion but whether he made reason; agreeable of cording to dictates determination. In an for an inten- action reason; just; We no rational.” find tort, accurately tional this is described as con- of faith unreasonable evidence bad a privilege. It is sometimes described as Dekmar; so we must conclude as duct privilege, defeasible or conditional reasonably, he acted matter of law that an distinguished privilege. from absolute all the circumstances question good light faith negligence, action for existing at time. Dekmar’s motion reasonably the officer acted whether

llH “* * * summary judgment should have been Motions for judgment notwith- or, latest, granted, very at the Dekmar’s standing the verdict shall be determined sixty (60) motion for a directed verdict at within days the close of after the entry judgment, plaintiff’s evidence should and if not so grant- have been determined denied, shall be deemed ed. unless within (60) such sixty days the determination is continued order of the but a VI continuance shall not extend the time to рart This is added we because more day days than 90 from the date of raised the issue of timeliness of the notice entry judgment.” (Emphasis added.) of appeal. parties The are entitled to know 59(f), Rule W.R.C.P.: we hold the notice timely, but “Motions for new trial and motions to also the reasoning therefor. design The alter or judgment amend a shall be deter- part this also meets the dissenting opinions. (60) mined within sixty days after the concurring opinion bolsters the views entry judgment, and if not so here expressed. denied, determined shall be deemed un- applicable rules for interpretation less within such sixty (60) days the deter- are: mination is continued by order of the 2.01, W.R.A.P., pertinent part: court but a continuance shall not extend “An the time to a appeal, criminal, day civil or more than 90 permitted days from entry judgment.” (Em- law from a date district court to the Su- preme Court, phasis added.) shall be taken by filing a notice of appeal with the clerk of the First, let it be noted that nowhere in district court within fifteen days appears these rules any requirement from entry of the judgment or final order continuance referred to must appealed from and serving the same in writing, be in labeled “continuance” and accordance with provisions of Rule signed by the district judge, or even so W.R.C.P., unless a different pro- time is written signed by anyone else. The * * vided law *. The running of the only requirements critical are that there be time for appeal in a civil case is terminat- a continuance based an order and that ed as to all parties aby timely motion the total time from date of any made by party pursuant to determination not exceed ninety days. rules enumerated, hereinafter and the judgment on the verdict was entered full time for appeal commences to run 5, 1981, on April 1981. On May appel- and is to be computed from the entry of lants as defendants timely filed their mo- any of the following orders made tion for notwithstanding the ver- timely motion rules, under such or when dict and motion for new trial or remittitur. such motions are deemed grant- denied: That filing 50(b) 59(f), under Rules ing or denying a motion for judgment running W.R.C.P. terminated the W.R.C.P.; under 50(b), Rule granting or 2.01, time for appeal under Rule W.R.A.P. denying a motion under 52(b), Rule W.R. The case had been tried in Douglas, Con- C.P., to amend or make additional find- County, Eighth District, verse Judicial fact, ings of whether or not an alteration judge, district T. Honorable Paul of the judgment would be required if the Liamos, Jr., District, of the Sixth Judicial granted; motion is granting denying a who resides in Judge Newcastle. Liamos motion under W.R.C.P., Rule to alter sat by assignment. May on the case On judgment; amend the or denying a 1981, there was filed records of the motion for a new trial under Rule County district court for Converse and en- (Emphasis W.R.C.P.” added.) journal, tered in the court’s page Vol. 50(b), W.R.C.P., 50: pertinent part: 2.01, Rule required by court the order of denial as

The above record of the order of the W.R.A.P. setting hearing prior expi- the was made

ration of the limit of Rules sixty-day initial held at hearing A full-blown 50(b) 59(f), The date set for W.R.C.P. setting post-judgment of the June hearing sixty days was after the fixed by plain- motions. There is no motion 10, 1981, prior by July those rules. On still showing any- tiff-appellee other expiration of limit of the ninety-day hearing to the objecting where in the record rules, Judge signed same Liamos an order ground that there set for that time on of the denying post-trial by defendants’ motions. On no continuance order had been 23, 1981, of the motions. July appellants-defendants’ notice court for determination June transcript hearing within of the appeal was filed the 15 from The days

H13 1981, fails to disclose slightest hint that period prescribed by statute. This court irregular being as out of time or not further observed that the motion was ar- properly continued. The atmosphere whole gued and on merits, contested its and both reflected by record and hearing by ad- parties, court, as well as the treated the versary counsel and the trial judge was that undisposed motion as by operation of if a continuance by order of the court was law. There is more to the case than first necessary, granted it was and evidenced by eye. speaks meets the It approvingly through the notice of setting and precedent from other states with similar the conduct of all participants. statutes or rules that the parties waive may 59(f), in the part with which we are any right to claim a discontinuance of the concerned, was originally part of the Code consequent motion from the absence of an Procedure, of Civil having been by enacted by appearing and unreservedly con- legislature chapter 112, Laws Session testing the merits of the motion for new of Wyoming 1935.13 The Federal Rules of token, By trial. the same in the case before Civil Procedure contain provision. no such us, parties and the trial court treated purpose of such a rule is explained by the hearing and determination of the mo- this court in Board of Com’rs of Natrona tions as continued—and what could be more County v. Casper Bank, Nat. 55 Wyo. reasonable! It was further held that denial (1939): 96 P.2d 564 operation such a motion by of law is for “Statutes this kind substance have the benefit of the party who obtained the been enacted in a number of States of the may be waived him Union, and, without undertaking to be appearance and failure object. This exhaustive, may we mention the com- approved court likewise following Montana, California, monwealths of Ore- Com’rs, supra, Board of now rewritten and Wisconsin, gon, Arizona, Alabama and appearing in 21 pp. C.J.S. Courts § Colorado. The enactment of such laws is 163-168:14 evidently with the idea expediting jurisdiction “A want of of the subject court business and preventing trial waived; matter cannot be but where a judges from keeping motions for new tri- general jurisdiction court has of the sub- al under advisement for an unreasonable ject jurisdiction matter a lack of length of time. Statutes of this charac- waived, particular may case be as may ter have generally been held to be man- ” * * * jurisdiction, other objections such as datory. jurisdiction lack of person. An While that case dealt with the statute waived, waived, objection, if it can be provided which stipulation for a for contin- methods, among by invoking, other uance, it contains subject a discussion of the to, submitting jurisdiction. court’s gives useful insight into the func- letter [Black rule.] tions of the rule. In that case this court “An jurisdiction noted that there absolute want of was no order of continu- ance, parties subject but the matter or cause of appeared and action cannot argued waived, motion for new jurisdiction trial and the court entered be such cannot an order on the merits sixty-day after the conferred Accordingly waiver. “ Chapter S.L.Wyo.1935: ‘But, general jurisdic- where the court has subject-matter, jurisdic- tion a lack “Motions for new trial shall be determined particular may sixty tion case be waived days judg- within ment, after the rendition of timely specific objections, failure to take and if not so determined shall be denied, juris- or an invocation of or submission to deemed unless continued order of deny by stipulation.” estoppel an or diction raise to such by stipulation jurisdiction. parties may Continuance is not now So also the either allowed by conduct, expressly by objec- the rule. or their waive pursued having tions tо remedies courts appeared ” quoted itAs in 15 C.J. 845 ¶ jurisdiction subject-matter.’ of the v. Cas County in Board of Com’rs of Natrona per Bank, Nat. 96 P.2d 564 at 569: 50(b) and of Rules provisions subject matter The deadline jurisdiction

lack answer, purpose expediting general 59(f) demur- served our by is not waived have to, rer, demur, object failing to to were determined failing The motions litigation. of, juris- the question or otherwise raise rule. It is not our the limits of the within merits, diction, violation, to trial on the mov- going when a rule function to concoct trial, or appealing, partially for a new only a evidence of continuance there is Moreover, complying judgment. with the order of the by express but by conduct objection completely the court here are court. The circumstances district matter jurisdiction subject lacks of the we have decided in cases where any unlike manner. may be raised untimely. to be appeal notice of hand, objections “On the other to the authority in Brasel Sims There is venue, procedure, including proce- Co., Transit v. Neuman Construction Co. acquired jurisdic- the court dure which finding 378 P.2d 501 Wyo., case, tion of the or the particular remedy in the record. In that case continuance waived, pursued may may be as a lack of trial under Rule moved for new defendant jurisdiction person. of the 59(f)15 for an extension and later moved jurisdiction general “Where the court has the motion to for determination of time matter, subject jurisdic- of the a lack of argued 23. The motion August case, particular dependent tion of the as by the taken under advisement August facts, particular the existence of until judge but was not determined district may be waived. overruling by entry of an order October “ Objections What constitutes waiver. the motion. The determination jurisdiction lack of of the person, 23 but this court said: August continued to objections jurisdiction other not based the instant situation both court “In on the contention that there is an abso- hearing of the counsel at the time jurisdiction subject lute want of as if the con- apparently proceeded motion matter, by invoking are waived mat- to be effective until the tinuance was jurisdiction, court’s cross bill or Accord- ter was resolved the trial court. counterclaim, consent, voluntary or sub- supreme the motion to dismiss ingly, [in mission, jurisdiction, or conduct exactly That is must be overruled.” court] amounting general appearance, to a or us—the what occurred in the case before objecting jurisdiction to the of the sub- proceeded court and counsel as if a continu- ject matter, failing question to raise the had not. granted, ance had been even if it jurisdiction manner, in the proper Estate, Wyo., In re Potter’s This to, seeking ground relief on a additional that there 396 P.2d 438 held than, jurisdiction, ap- other want 59(f), implied continuance under other pealing, by any conduct indicat- judge the action of the trial supra, by ing an forego intention abandon or over- permitting delay entry of an order objection.” (Discussion Empha- of Rule. trial. He thus ruling a motion for new omitted.) sis added and footnotes an intent to continue determina- manifests The dissent overlooks the fact that courts tion of the motion. litigants as the parties. affected Brasel, noted this court also supra, purpose We do not function for the of dem- clarity a lack of of Rule there was onstrating authority pow- our and awesome There is 59(f), in such a situation. er to wave a wand and make an W.R.C.P. 50(b) in Rules disappear, clarity but exist to administer also a lack of justice 59(f), those who come to settle W.R.C.P. as to what to do disputes. their 59(f), provided: 15. Rule W.R.C.P. at that time the determination is continued by stipulation.” the court or “Motions for new trial shall be determined sixty days entry judg- within after the transplanted statute, As fn.13, with the con- ment, if not so determined shall be by stipulation tinuance is not allowed. denied, sixty days deemed unless within such

1H5 case; appeal now us under the circum- it leaves all they before matters as were before, except stances. We do as this court did in both that the time is changed. Hirstine, 395, v. proceed McKinney Board Com’rsand as did 257 Iowa 131 Brasel— 823, judge (1964). trial and counsel on the basis that N.W.2d Substance must prevail form, there was an effective continuance of the over postponement mere stronger determination. The case at bar is of court is a action continuance whether or than either of those cases because there is it is so labeled. v. District Simakis present here a notice of Court of Fifth Judicial for setting evidencing Eagle Cty., 194 3, (1978). an order Colo. 577 P.2d continuing court the matter to meet his convenience as a visiting judge. states, where similar proce- Other code provide dure or court rules deadlines for recently

Rather this court has refused to motiоns, disposing post-trial have no an appeal clarity dismiss because of lack of problems finding continuances from the cir- State, in the applicable rule. In Downs v. Buros, cumstances. In Patch 2 Ariz.App. Wyo., (1978), 581 P.2d 610 this court refused (1966), 410 P.2d 703 the Arizona Rule appeal to dismiss an even this though court 59(e), tracking Civil Procedure the same itself had raised the question timeliness rules, numbering system as our provides appeal, the notice of stating “[mjotions for new trial shall be deter- “[bjefore we will dismiss an fail- days mined within twenty after rendition of timely ure to file a notice of there appeal, judgment, if not so determined shall be grounds doing must be clear It so.” denied, deemed unless continued order of judicially unbecoming traps to set for trial court, by stipulation.” The trial counsel, judges and and we should not con- court took the motion under advisement strue our rules to reach that result. minutes, taking and entered in its “ORDER What is a continuance? Black’s * * * Motion for New Trial under advise- (1979) Law Dictionary defines it: “Continu ment.” taking It was held that the order adjournment postponement ance. The the motion under advisement is an “order session, trial, hearing, or other proceeding which court” a motion for new to a subsequent day or time. Also the may trial be “continued.” Patch cited entry continuance made rec Mullins, Zugsmith v. 81 Ariz. 303 P.2d ord of the for the purpose formally (1956) by supreme which the court of evidencing the postponement, or of connect pace Arizona set the for such a resolution ing parts so as to record make by holding that an order taking case one continuous whole.” Ballentine’s Law under advisement is in effect an order of (1948): Dictionary An “continuance. ad contemplated by continuance the rule and journment of a cause from one to an day jurisdiction trial court did not lose other, be in the same or in a rule on the motion. term, although later ‘postpone word Co.,52 Quinn-Robbins In Palmer v. Idaho preferable ment’ is hearing where a trial or 661,18 P.2d 917 it was held that since is delayed only until a later of the same day a motion for new trial could not be heard term, or until a later hour of the same day.” specifications particulars until of error and Webster, Third International: “Continu * * * filed, touching alleged errors were an order 5; adjournment ance. extending filing the time for those items proceedings day; a case to a future necessarily legal had the effect of extend- alsо: the entry adjournment of such hearing the time for the motion. grounds thereof on the record.” Con Schinz, postponement Portykus tinuance is the rel. of an action State ex pending in a court to a it was con- subsequent day. Wis. 187 N.W. Brueckl, Ferber v. 322 Mo. tended that there was no valid continuance S.W.2d (1929). A generally continuance of a motion for new trial because there was means hearing the date of is no written order but the court held that an postponed. It does actually not affect the merits of oral order made became the order the effectively hearing as en- ‍‌‌‌‌​​‌​‌​​​‌​‌‌‌‌​​​‌​​‌​‌‌‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌‌‌‍the set for the was within though

of the court as date determination, at maximum for ninety-day writing. tered in period which would be discontin- the end of Schoel, 205 Ala. In Ex Parte So. jurisdiction to act. uance of the court’s (1921), it by appearing was held that doing the district court in so The clerk of unreservedly contesting and the motion for carrying prescribed by was out her duties trial, plaintiff any right new waived 5-3-202, W.S.1977: consequent upon claim discontinuance “* * * upon shall attend He [she] absence of effective orders of continuance county court held in the terms of though of the motion even the orders had elected, perform is and which he [she] orally been made from the bench. The relating to his office as such duties [her] court went on to hold that the entry by of him may required be [her] is no more than a per- record ministerial court, perform shall all such other judicial pro- formance as memorial of the as are relating to his office duties [her] nouncement. by him law or the rules required of [her] Northern, also Britton v. Burlington See (Emphasis practice of the courts.” Inc., Mont., 601 P.2d 1192 where un- added.) 59(d), der Montana’s Rule M.R.Civ.P.16the there was a con- reflecting The notice court said it would be “unconscionable” to tinuance order of the court is evidenced not consider that a motion for extension of Judge present the fact Liamos support time to file a brief in of motion for appeared in the courtroom at the time “by necessary implication” new trial extend- designated (the setting, p. was for 5:30 m. the time ruling ed for its on the motion. Mon- transcript proceeding but the showed the tana’s M.R.App.Civ.P., practically starting p. m.). at 6:00 The court an- 2.01, tolling identical to our Rule W.R.A.P. nounced: time for notice of when a motion “THE in session in Civil COURT: Court’s for new trial is filed. Rupe against Action # Thomas N. The issuing clеrk of the district court in County the Board of Commissioners of hearing Converse, the' notice of conveying et al. County (the assigned counsel the order of the court motions that have been “We have several judge) district that he was holding and, Parker, in status the defendants Mr. filed ” quo all proceedings postpon- ready proceed, the case and sir? you ing (continuing) the determination of the parties certainly treated the notice of motions, hearing until a could be held. His setting as an order of the court because order clerk and the notice of setting preargument both sides filed briefs and prior were to expiration of the initial sixty- present were in accordance with the di- day limitation 50(b) 59(f), of Rules rection of notice. 59(d), may

16. Rule M.R.Civ.P.: be entered “The decision on the motion court, may in the be made minutes of the “Hearing on the motion shall be had within writing any county in chambers or in days served, after it has been or within 10 be, judge may the state where the and be days party opposing after the the motion for county filed with the clerk of court new trial has served his affidavits as set forth pending. Upon where the action is the hear- (c) subparagraph except hereinabove ing, may reference be had in all cases to the hearing time after the notice of on the file, pleadings and the orders of the court on may motion has been served the court issue may any deposi- continuing hearing and reference also be had to not an order documentary days. tions and evidence offered on exceed 30 hearing is con- case trial, proceedings and to the on the trial duty tinued it shall be the and, necessary, had practi- when reference court to hear the same at the earliest thereafter, reporter. cable to the notes of the court date and the court shall rule upon up hearing days “If motion not noticed and decide the motion within 15 thereon, hearing after the same and no is held it shall be is submitted. If the court expiration shall fail to rule deemed denied as of the motion within said time, shall, hearing expiration period the motion time is re- at the within period, quired said be deemed denied. to be held under this Rule 59.”

1H7 * * * case performed present purport The clerk re- notice in the does “dut[y] * * * clerk, quired the court.” but transmits the to be an order judge, plaintiff counsel for the and counsel сonveys of the court itself and an order in for the all responded defendants in such a legal procedures. the sense used in procedures fashion that the followed as Nagle, Toulon v. 67 Wis.2d 226 “practice of the court.” The notice was on dissent, (1975), 480 cited by N.W.2d form, printed further evidence of an es- point. likewise not The held practice expected by tablished and followed appeal untimely by because the notice sent the bar. the clerk did not recite that the extension It would be astonishing’ anyone time was order of the court. The by imagine would even that the clerk of court recites that the order in the case before us undertaking judge to act like a or notice was order of the court. The court usurp any power of the court rather than not further held that the extension was performing duty. ministerial The notice 270.- required by for cause “as sec. granted hearing was an affirmative record me- have no similar statute or Stats.”17 We morializing an action by the trial court. rule an extension of determina- requiring There is no doubt that if the parties had for cause. The circumstances are not tion frivolous, treated the notice as some unau- it is noted that the comparable. passing, In clerk, thorized action that would go Wisconsin court did ahead and decide appeared have in the record and the notice granted the new trial should be be- appeal would have then justifiably been it can exercise its discretion and cause untimely. jus- a “new trial in the interest of grant Dickson, v. State Wis.2d tice.” (1972), dissent, N.W.2d cited in the representative If those authorities are “order” clerk’s did not indicate that it was dissent, then there is no au- stated issued as an order the court as here of the dissent. The thority position where the clerk in the notice made it clear the courts of oth- overwhelming position of that she was only carrying out the order of be im- may er states is that a continuance on his own judge the district motion. Fur- case was thermore, Dickson an appeal there from the circumstances. Nor is plied judge holding from action of a an attorney Bertagnolli, any analogy Bertagnolli and his client in contempt attorney’s for the P. 374 where the Wyo. calling judge action in on the in his chambers clerk entered a default advising judge authority that he had face a late-filed demurrer. This court appear fоr his client and that he not not do would held that the clerk could that. only present have his client at a pretrial hearing Osborn, 89,156 Wyo. Nor does Kimbel in the criminal case. The real gist of this any P.2d 158 A.L.R. 1079 have case was not the notice but the unlawful holds that application simply since action of the judge requiring trial entering not followed in a de- statute was present criminal defendant to be pre- at a judgment. key holding impor- fault The trial conference when there is no re- such Bertagnolli; tance in those cases is quirement in Wisconsin. is, entry judgment, and that of a default statute. In the the clerk must follow the There is no element of waiver in that case, judg- case a default present though and the order of not the clerk of court was case, held not to be “an ment clerk did follow the statute. order of the court in the sense used in legal procedures.” judge The did as directed the district She statutes, 270.49, quate damages justice; 17. The Wisconsin then in or in the interest of effect, provided: but motion must be and heard such made rendered, within 2 months after the verdict is “(1) party may A move to set aside a verdict unless the court made its before trial for a new because of errors in the expiration extends such time for cause. contrary trial or the verdict is * * *” because to law (Emphasis added.) evidence, or to the or for excessive or inade- * * * issued that he hear- a notice had ordered a in which “regulate not the manner did ** * ing in with court practice. applied accordance for.” It pardons There question exceeding is no the clerk legislative grant amounted to a of pardon. her authority, taking off on some frolic legislature constitutionally could do own, undertaking her to play judge. She so. no

exercised discretion. powers government “The of this into de- state are divided three distinct It is for these reasons the court found the partments: legislative, executive and appeal timely proceeded notice of judicial, person no or collection decide its on merits. pow- persons charged with exercise of Reversed and remanded with directions belonging ers to one of these properly to vacate the judgment in favor of appellee exercise departments powers shall Rupe and enter for appellants others, to properly belonging either of the Blake and Dekmаr. except expressly as in this constitution 2, 1, Wyo- or permitted.” directed Art. § ROONEY, Justice, concurring. ming Constitution. I concur. Inasmuch as many of those legislature regulated The has the manner discharged from penitentiary the received for.” “pardons may applied in which be certificates of discharge containing the 7-13-806, through 7-13-801 W.S. See §§ same or language similar to that contained has the 1977. Such been held to not limit in Rupe’s certificate, I to set my want forth of governor par- discretion the in granting belief toas the effect of them and Moore, re 4 Wyo. dons. 31 P. 980 7-13-107, effect W.S.1977,1 of § pursuant (1893). Appellee pardoned pursu- was not to which the certificates were worded. In- provisions of The ant these sections. sofar provided as such gov- section that the pardon allegedly arising certifi- ernor shall issue a discharge certificate for discharge cate of was without an exercise to convicts which shall rights restore “his governor of was discretion and as though same a full pardon had been therefore invalid. granted,” unconstitutional; it was and pursuant recitation thereto contained in the respect With of to the dissent Chief Jus- form for a certificate of discharge which Rose, believe, therein, tice I do not as stated provides for a restoration of civil rights had that we have our departed from standard no force or effect in law. policy appeals of dismissing when the notice not timely Although is filed. The power to pardon governor, is in the record, “order of continuance” is not in the and governor, in the as chief executive persuaded I am that there sufficient rec- is of the state. Art. of the Wyoming § ord reflection of the existence of an order Constitution pertinent part: reads in setting hearing, for the matter and “The governor shall have power to remit re- satisfy such order sufficient to forfeitures, fines and grant reprieves, i.e., 59(f), W.R.C.P.,2 quirement pardons commutations and after convic- was sufficient to that the “determi- indicate tion, all for offenses except treason and appellant’s nation” of motions “contin- cases impeachment; legisla- but the ued order the court.” may by ture regulate law the manner in fines, which the remission of pardons, With reference to existence of an reprieves commutations and ap- be setting hearing, order the matter for ” * * * plied for. re- majority opinion notes that there is no Section 7-13-107 did not leave quirement writing the discre- or be tion to grant pardons governor. in the It labeled “continuance.” The record contains majority opinion provisions 1. See dissenting 7- See 1 of fn. Chief Justice Rose’s 13-107, W.S.1977, May prior opinion 59(f), 1981 and see for content of Rule W.R.C.P. opinion provisions fn. 2 of that after thereof May 1981.

1H9 is, “Pursuant court made before it can setting begins: order of a or notice be, out in Motion written the records of made the Court’s own the court to order ” * * * added). out, ema- When written (emphasis notice the clerk. order, of court. the office of the clerk a record of the writing nates from becomes her, copies and were directed signed It is of it. Orders are almost is evidence for all of the attorneys parties. concerning to the to the marshal daily given in the to in the notice is not performed order referred in the presence matters to record. they constantly are as In- being written out. executed before orders and the trial Many rulings of deed, of them are never reduced many orally. practice courts are made The better Yet there can be no doubt writing at all. make such in or have writing is to either Now, validity. language of their tran- part them recorded as a of a verbatim question enough is broad statute However, there are script proceedings. natural, valid oral orders. The include all approved other methods to establish meaning of the word includes ordinary during which occurred proceedings written, unwritten, orders, well as case, 4.04, progress e.g., Rules 4.0Band law, policy there is no reason W.R.A.P., relative to the evidence state of things, excluding or in the nature proceedings when made or report no Indeed, contrary is unwritten orders. transcript is unavailable and when cor- just as much true. There reason rection modification of the is nec- record re- making it an offense to necessity for The essary.3 recitation of the existence of of a lawful sist the execution unwritten by the clerk of order as here done order, brought distinctly and authorita- in the notice of setting, is sufficient evi- offending par- notice of the tively to the dence of the fact of such order. making it an offense to resist ty, as for State, 26, Murry In 28 Wyo., 631 P.2d ”* * * writing. of one in the execution we noted the an oral potential of Cir., 771, 9 41 Terry, F. United States order, although its existence nоt perti- (1890). 773-774 case, nent to resolution of and its case: And in a recent was there existence evidenced a state- by <<** * (order oral, proceedings may ment of of a court’ be supplementing the rec- An Comm, Pennsylvania ord. It was said in an v. Local early involving case as in contempt 542, Freedman), a criminal 552 (Appeal court: Union 3,1977). (CA may paper, It be a F.2d 498 “Undoubtedly, in proceedings, an ‘ORDER’, by a signed the word ‘order,’ bearing as contradistinguished from a may judicial officer. Or it judge or other ‘judgment,’ is often defined one re- as writ be a of execution or other subpoena, to writing, duced entered in rec- Proceedings, Re process.” Jury Grand court; ords of the purport and such is the 9, 12 (1980). F.Supp. 503 “* * * many of the by cases coun- referred to sel for defendant. is order by judgment But that no An is the deci- saying that means such an order. court. It may is sion of the be formulated must, in things, There the nature by by be an in or writing judge, declared Although my appeal I Supreme do not base determination in before the docketed thereon, 60(a), W.R.C.P., 37, Court, Rule appeal and Rule thereafter while the W.R.Cr.P., 60(a), are may of interest. pending Rule W.R. be so corrected with leave C.P., provides: (Emphasis Supreme added.) Court.” “ * * * W.R.Cr.P., 37, provides: judgments, Clerical mistakes in Rule or- parts judgments, mistakes errors ders other of the “Clerical orders record arising oversight therein from parts or omission record and errors in other arising may oversight by any be corrected record or omission the court time of at any may its own initiative or on the motion time be corrected the court at notice, party any, notice, after such any, if as the and after such if as the court During pendency orders. of an (Emphasis added.) orders.” appeal, such mistakes be so corrected orally. duty him In the latter event the advise prospective appellees they ” * * * upon appellant’s rests the clerk to write the sub- freed of demands. Murphy, stance his records. That was done Matton Steamboat Co. v. 412,415,63 case, 1126,1128, thereupon in this the order be- U.S. S.Ct. 87 L.Ed. (1943). came entered as as if completely written judge out himself and signed by purpose The terminating running ” * * * Voje, 1, him. Allen v. 114Wis. 89 of the time in which to file an when 924, (1902). N.W. motion for a new trial timely has been Director, filed is set forth in Browder v. The fact of an existence of an oral order Illinois, Department of Corrections of together with its import must be deter- 556, U.S. 98 S.Ct. 54 L.Ed.2d 521 case, mined on a сase case basis. In this (1978), reh. denied 434 U.S. 98 S.Ct. the recitation of the fact of the (1978): 55 L.Ed.2d 795 clerk of court and the fact that it set a “* * * hearing The appellant’s tolling motions for June rationale behind the principle of the Rule is same p. 5:30 m. are without question. practice: The traditional ‘A integrity timely petition of the clerk’s recordation rehearing running should tolls the equal to that of a reporter’s tran- script. [appeal] period operates because it to sus- pend finality of the ... court’s judg- With reference to the second aspect of ment, pending the court’s further deter- issue, i.e., whether or not the order mination whether the should be setting the motions for trial at a date be- adjudication modified so as to alter its yond initial 60 days allowed rights of the parties.’ Department of 59(f), W.R.C.P.,is sufficient to continue the Pink, 264, 266, Banking v. 317 U.S. determination of the motions into the ex- 233, 234, (1942) (em- S.Ct. L.Ed. 254 tended 30-day period, the purpose behind ” * * * phasis supplied). the entire time important. table is purpose setting a time for deter- itself, time table insofar as this case is mination of the motion for a new trial is concerned, is as follows: setting the same as that for a time in which 1. Notice of appeal must be filed within appeal. to file a notice of 15 days from the entry judgment of the purpose terminating Inasmuch as the final appealed order per 2.01, Rule the time in which file an appeal is to W.R.A.P., and such filing jurisdictional suspend the finality judgment, 1.02, per Rule W.R.A.P. would seem that an order a setting date for 2. running The of the time in which to limit, a hearing beyond original 60-day file a notice of appeal is terminated if a but within the authorized additional days timely motion for a new (as trial is filed equal would be of notice and force to sus- here) 2.01, per Rule W.R.A.P. pend the finality judgment until the 3. The motion for a new trial shall be hearing date “pending court’s further “determined” within 60 days after entry determination whether the judgment should the judgment determination unless “the captioned be modified” as would an order continued order of per the court” Rule “continuance.” 59(f), W.R.C.P. That such was taken to be so the trial purpose setting a mandatory and court and all of the parties is evidenced jurisdictional time within a which notice of hearing the fact that the held actually appeal must be filed is: set, at the time with the judge and all “* * * to set a definite point of time parties in attendance and participating, litigation еnd, when shall be at an unless with appellee making objection no to such within that time prescribed applica- hearing.4 opinion for an majority See made; tion not, has been point. and if it has elaboration of this W.R.C.P., Although 59(f), provision Rule then con- tained an relative to con- additional

H21 W.R.C.P., The language 59(f), dissent, however, of Rule I must from the conclu- specify does not any particular kind of an sion that this court had jurisdiction in this order accomplish the continuation. It appeal. longWe have followed the rule provides that the purpose of the order is to timely filing that the of a notice of appeal continue the “determination” of the matter. is essential to vest this court jurisdic- with hearing If the on the motion for a new trial tion. We have ameliorated the strictness of were held before the expiration of the ini- rule, however, by now providing in tial 60 days, but the court had complet- not 2.01, W.R.A.P., Rule that: ed its perhaps research or it had ordered appeal, “A notice of in a civil or criminal due, briefs which yet were not the usual case, filed prematurely shall be treated as order continuing hearing would not be day filed on the same as proper. entry judg- An reflecting the fact of the hearing and that the matter order, was taken ment or final provided it complies under advisement or an order setting time 2.02, with Rule W.R.A.P.” for briefs or some similar order should be In this case the became final 60 sufficient to continue the “determination” days after the filing of the motion which filing extend the time for a notice of sought relief under 50(b) 59(f), Rules appeal. An order setting a time for the W.R.C.P., “unless within such sixty hearing itself should also be sufficient for days the determination is continued or purpose. such der of the court.” 50(b) and Rule Generally, the proceedings and actions of 59(f), W.R.C.P. I am persuaded that a the trial court presumed to be regular Setting Notice of such as that entered in proper. O’Malley Eagan, 43 Wyo. this case is a continuance by order-of the 2 P.2d reh. denied 43 Wyo. court. On its face it is nothing more than a (1931). P.2d 77 A.L.R. 582 I find noth- calendaring order which could be entered ing in this record to pre- overcome that by the clerk of the district court upon ad sumption. There anwas order of the court setting hearing visiting on the vice from the judge motion for a new as to the dates trial beyond date the initial 60-day that he would be Certainly available. 59(f), limit contained in Rule W.R.C.P. dоcket entries in this case do not reflect any order continued the “determination” of the oral order of the court which could as serve motions. The notice of was timely a basis for concluding that there was any filed. continuance intended. I submit the foregoing as additional legal A fiction is an “Assumption of fact grounds holding for the majority made deciding legal basis for opinion. question. A situation the contrived law matter, permit dispose a court to THOMAS, Justice, concurring and dis- it need not be though improperly; created senting. e.g. grant fiction of lost for title by basis If the issue on the merits in this case is possession.” adverse Black’s Law Diction- before the disposition, court for then I (5th 1979). I ary, p. 804 Ed. am satisfied agree entirely disposition with the made of that in instance the has struc- majority this that issue by majority opinion. I am legal permit signifi- tured a fiction to persuaded that it is necessary in our society cant issue on merits to be reached. that prosecutive county discretion of a doing so the effect of an amendment of this attorney should not be po- inhibited away power parties rule to take of the tential of civil action in those cases in which convictions are not obtained. stipulate to the extension of time for by stipulation, said, overruling

tinuation we effective until the matter was resolved timely a motion to dismiss for failure to file a trial court.” Brasel & Sims Construction Co. v. Co., appeal, Wyo., notice of that “both court and counsel Neuman Transit 378 P.2d hearing appar- (1963). at the time of the of the motion ently proceeded as if the continuance was to be ROSE, Justice, dissenting. of such a motion either forth- Chief disposition inference has been rightly sidestepped I writing majority, Had I been for the very neatly. would have found that this court does not regret I that the district courts have been jurisdiction appeal to entertain this have encouraged by this decision to not deal de- and therefore would have affirmed. with such matters. While finitively per- Following perfection of the haps responsibility upon some must be cast case, possible jurisdic- this discovered a we appeals counsel to be sure that their are not defect, and, we argument, tional at oral inadvertence, lost through in the efficient to submit additional briefs parties asked the administration of the business of the court addressing provi- our concerns. Given the judge the district has a for responsibility W.R.C.P.,1 59(f), sions of Rule we ques- disposing either of such motions or entering the appellant’s ap- tioned whether notice of a clear order continuing disposition for peal timely. following describes days. not more than 30 It occurs to me of events that rise sequence gives that, upon based the state of the visiting problem: calendar, judge’s the clerk in this instance could easily hearing have as set the Judgment Entered 4-27-81 day days some more than 90 filing after the 59 Motion Piled 5-05-81 Setting motion, For 5-22-81 Notice of the and I do not believe that a Hearing (set 6-29-81) Motion legal fiction could have developed been Rule 60 Motion Filed 6-22-81 save the matter in that instance. I do Hearing on Motions 6-29-81 agree with Chief Justice thought Rose’s Denying Motions Entered 7-10-81 Order Filed 7-23-81 Notice Appeal the continuance of the disposition such a motion is a matter of discre- W.R.C.P., 59(f), to Rule According

tion which mo- should not in manner be delegated to the trial are office of the clerk of the tions for new deemed denied if not district court. days decided within 60 entry unless a judgment, granted continuance is regret I do have another which I will “by (emphasis added) order of court” During state. the years that I have been as much as an allowing days additional privileged to serve previ- on this court we to determine within which the issue raised have ously appeals dismissed because of an rule, by the motion. Under this appellant’s untimely notice in very circumstances simi- new trial must be motion for a deemed certainly analogous lar to and to these. I 26,1981, by operation denied of law on June would suppose every one of those ap- unless the clerk court’s “Notice of Set- peals could have been imposi- saved argu- which set the date for ting”, hearing style legal tion of some fiction similar to Yet, ment the Rule 59 new trial and Rule invoked here. if our rules of 60(b) three June 26 procedure days past motions sufficiently plastic permit date, to an the court” adjustment by their amounted “order of imposition legal ruling fictions granting permitted then seems to me extension they become guidelines such, only, rules. As on the motion for a new trial. If this is the their utility would be substantially Setting”, the clerk’s undermined. effect of “Notice operative language 59(f), day days entry 1. The of Rule W.R. more than 90 from the date of added.) C.P. is: judgment.” (Emphasis “Motions for new trial or to alter or amend following 2. The record reflects the Notice judgment; time limit.—Motions for new trial Setting entry by the clerk of court: judgment and motions to alter or amend a sixty (60) days shall be determined within upon The “PURSUANT TO ORDER made entry judgment, after the and if not so case, notice Court’s own Motion above denied, determined shall be deemed unless Monday day hereby given that the 29 sixty (60) days within such the determination has been set for Hear- June 1981at 5:30 P.M. ing * is continued * order of the court but a Motions, Defendants’ *.” of all of continuance shall not extend the time to a

H23 the extension appellant’s appeal granting then from the effect of contem- filed. If this is not the effect of timely 59(f). Rule This plated by provisions of then the entry, appeal the clerk’s notice of that, means under our rules and opinions jurisdiction was late and this court lacks them, interpreting we cannot reach any is- on appeal consider its merits.3 on that which appeal except sues concerns trial denial of appellant’s We are faced with this dilemma: In or- courts Rule der for the appellant’s position to hold 60(b) motion.4 Setting” the “Notice of is sufficient to com- earlier, 59(f), Rule au- As noted W.R.C.P. 59(f) with the ply provision, time-extension granting up thorizes the of continuance of we must be able to say: 60 from days past original days to 30 Setting” hearing 1. The “Notice of judgment during which addi- entry argument ‍‌‌‌‌​​‌​‌​​​‌​‌‌‌‌​​​‌​​‌​‌‌‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌‌‌‍appellant’s motion for a permitted tional time the trial court is actually extending new trial is an order language rule on the motion. The the time limitation within which the rule makes clear that the extension can court can decide the motion for a new granted by “order of court.” In 59(f), trial under Rule words, extension-granting other deci- If that is what the “Notice of Set- discretionary sion is a matter with the ting” extending is—an order really purpose (f) court. The of subdivision time within which the court will be per- business, expedite Rule 59 is to court and to mitted to decide the motion for a new finality judgments. insure the See trial —then we must be able to decide subject discussion of this in Board of Com- that the clerk of the court has the power Bank, Casper missioners v. National 55 authority to make and enter such an 144, Wyo. 96 P.2d 564 rev. on other order, i.e., assuming, arguendo, the “No- — grounds, (1940). 105 P.2d 578 We have held Setting” tice of was made on the court’s provisions (f) of subdivision motion and was intended to serve as an jurisdictional and the extension require- extending order time within which decide the complied judg- could motion for a ments must be with or the 59(f), new trial under we must then ask days. ment becomes final at the end of 60 whether the clerk of court’s “Notice of Furthermore, a written order the court Setting” can be said to be an “order of extend the time limitation after the cannot 59(f). required by court” as Rule by opera- motion has been deemed denied Hauffe, Wyo., tion law. Johnson v. 567 My question review of the forces me to McMullen, (1977); McMullen v. P.2d 735 that the clerk of conclude court’s “Notice of (1977); P.2d 37 Land & Setting” Wyo., did and could not have the 559 Sun VonFeldt, Rutledge Wyo., though jurisdictional 3. We said v. “Even these deficiencies par- P.2d 350 at 351-352: were not called to our attention ties, was, nevertheless, unhappy our obli- timely “Without notice of from the Jackson v. gation up to call them ourselves. judgment, jurisdiction. Jack- are without we State, supra, con- and authorities therein State, Wyo., 1203; Wyoming son v. 547 P.2d tained.” Company Farm Bureau Mutual Insurance v. Vannelli, Spencer 738; Wyo., v. 370 P.2d 60(b) us since an 4. The Rule issue is before Pringle, Wyo. 204; Fertile 67 P.2d appealable. on this motion is final Valley Kearney, Wyo. Co. v. Canal However, 60(b) extend the motions do not Ainsworth, 620; Culbertson v. 263 P. appellants appeal, and are there- time limit for 418; Wyo. Hahn v. State Citizens’ 181 P. attacking underlying by precluded Bank, Wyo. 171 P. reh. den. 25 Thus, any involving judgment. the mer- issues Manage- Wyo. 467, 705; Financial 172 P.2d preserved for our its of this case were not Co., Corp. Wyoming Sign ment Electric 60(b) motion. See: Morad, review reason of the 567; supra; Wyo., Bosler v. 555 P.2d McBride, Wyo., 598 P.2d 814 Weber, McBride v. Wyo., Bard Ranch Inc. v. 538 P.2d Kennedy, Wyo., (1979); Kennedy den., 483 P.2d Appropri- Matter of Final Proofs of reh. Following (1971). Rights, Wyo., ation of Water 791; and Bowman v. Worland School P.2d Dist., Wyo., 531 P.2d 889. Brown, Wyo., impose upon Co. v. 387 P.2d 1004 seems to indeed the clerk Cattle But (1964).5 judge say ministerial task. should the clerk, to the Setting” Is an a “Notice order—and “You or not should order, an decide whether we if it is an is it order extending grant additional with- appellant the time time to decide within which the motion for a will which the motion new trial for a new is it an order setting trial —or heard, which failing be it will be deemed the on argument time for the motion—or denied,”— is it both? delegated this sounds like the clerk is being I have the entry heretofore noted made the court’s discretion. n.2, the clerk of the

by supra. court On face, In view of the authorities that I will refer entry purports its the clerk’s to set the hereafter, to must be assumed that hearing beyond 60-day motion deadline entry was a this, clerk ministerial task 59(f). conceived Other than and did it could not—because not—involvе the record reflects action no the trial assumption discretion. This leads judge respect granting with to the deny- or to the that the entry conclusion was what it ing of an time within extension of which to appears to be—a ministerial act which told on appellant’s rule new-trial motion. Noth- lawyers appear when mo- argue ing in the record verifies notion that the judi- tions an and was not exercise of such “Notice Setting” extending past time cial discretion as would be in de- necessary 60-day limit was entered by authority ciding grant whether not the court would of the trial judge. Even if it could be deciding motion to extend the time for shown that the “Notice of Setting” has 59(f). new-trial issue under Rule been entered by the clerk the motion of the trial is judge, there still no record If the is entry clerk’s an order extend- entry indication that the was intended to be purposes 59(f), the time for of Rule an order within extending the time which it an just “order of court”—or is it the motion for a new trial could be decided clerk’s And if it order? is the former is contemplated 59(f). by Rule It certainly the clerk authorized make an such say does not that is what person this order? writing who authorized the intended. All Wyoming Various statutes describe Setting” says the “Notice of is that court, duties of clerks none of which argument on the for a motion new trial will suggest that has the power a clerk to issue be heard June, the court the 29th of orders 5-3-202, of the court. Section W.S. 1981, at 5:30 It p. appears m. to be a duties describes the court district

ministerial the clerk of entry by the court— clerk as follows: perhaps at the of the behest judge telling— “Each clerk the district shall court attorneys when judge will be available keep up make records and books arguments to hear on the motions. It does particular county, court of re- not purport to least say on its face— —at therein, ceive all cases filed rec- properly the judge that has exercised his discretion same, ord and to the attend shall respect with to whether or not he will ex- have the care and custody of all the rec- tend the time within which he will make a ords, books, seal, papers per- and property decision on granting or denial of a taining to his said office or the new-trial motion. which he county for is elected and For the judge to to the say court, clerk of therein, may deposited be filed

“Tell the here lawyers receive, to be next Tuеsday and shall account for pay motions,” argue their over money pos- all come into important It stipulation parties. present note the cases above Under the progeny, structure, dealt with only Rule 59 or its when the an rule Rule 59 extension can provided granted by (Amendment, extension could be of the court. granted by April 1978.) order of the but also

H25 law, also, according Bertagnolli Bertagnolli, of the court and See Bros. v. 23 session court, 228, (1915) the orders or decrees of the P. 374 Wyo. under 148 and Kimbel v. »* * * Osborn, (1945). Wyo. 61 156 P.2d 279 5-7-101, gen- W.S.1977 states Section

eral terms: What is an “order of the court”? “The clerk of each of the courts shall It has been said: powers per- exercise the conferred and “An ‘order of court’ has been defined as enjoined upon by form the duties him open by judge one made in court law; statute and the common and in court at the present place desig- who is performance of his duties he shall be judicial nated for the transaction of busi- under the direction of his court.” there ness and assumes to transact such clearly contemplate These statutes ‘judge’s A order’ business. has been the function served a clerk of is court by judge defined as one made at cham- that of an administrative officer of the bers or out of court. Under some stat- duty perform court whose it is ministeri- utes the distinction between court orders al tasks. abolished, judge’s orders has been at general rule said to be: respect least with to certain courts.” “In as much as a clerk of court is essen- (Footnotes omitted.) 60 Motions C.J.S. officer, tially a ministerial as is stated Orders, 2(b). § Title, cannot, he without ex- 1 of this § Another says: definition press statutory authority constitutional or “An a court ‘order’ of has been defined as effect, any judicial to that exercise func- conlusion of a [sic] tions, held, and the it has been has court which affirmative relief statutory no in the absence of power, granted special or denied on a motion or a delegate such matters to the authority, proceeding. The word has been defined clerk, the clerk although may properly at as a greater length decision made dur- acts which are classified as min- perform cause, progress either before (Emphasis added.) isterial.” 14 C.J.S. judgment, settling or after final some Court, Clerks of 35. point practice question or some collat- The rule was reiterated in Corbin State presented by eral tо the main issue Slaughter, Fla.App., ex rel. 324 203 S.2d disposed that must be of before pleadings (1975),where the court held a clerk of court passed can be the main issue is a ministerial officer who does not exer- court or that must be determined for the performing cise discretion in most of his purpose carrying into execution the general regarding services. This rule judgment. Although final ‘order’ has powers and the functions of the clerk of being every been defined as statutorily court has been reiterated in numerous judge direction of a court or made cases. For example, Wayne in Sabbe v. included in a writing judgment, and not County, 322 Mich. 921 N.W.2d ordinarily the word connotes not the court said: to writing order reduced but also “We have held that the func- duties and command, direction, verbal county tions of clerks are ministe- purely during made the course of a trial.” court rial and that functions cannot be Am.Jur.2d, Motions, Rules, and Orders performed by clerks, nor (1971) and the cases cited therein. 3§ power to do so be them. conferred term Colleton, Accordingly, construing courts People 59 Mich. 26 N.W. -

771; “order of the court” have said that Wilson v. Judge, Genesee Circuit affirmative action phrase implies Mich. Am.St.Rep. N.W. 173; its judge specific Toms v. Recorder’s which is and limited in Judge, Court 413, 212 Mutual application. Mich. N.W. 69.” Loomans v. Milwaukee 33 N.W.2d Co., Insurance 38 Wis.2d 158 N.W.2d 318, (1968); 321 Aetna Casualty Surety & purport to be an order ‘by the court.’ It Co. v. Sampley, 617,134 108 Ga.App. S.E.2d was a signed mere notice by the clerk and 71, (1963); 74 Puckett v. Company, Swift & carried with it none qualities of the of a 713, Mo.App., 229 717 (1950). S.W.2d properly issued order of a court.” 193 above authorities make clear N.W.2d at 22. phrase court”, “order of the as utilized in Nagle, 233, Toulon v. 67 Wis.2d 226 59(f), contemplates some affirmative 480, N.W.2d 485 the court said: record by court, action the trial in order 11, 1972, “On February parties were

that a continuance will be said to have been sent a notice by clerk rescheduling granted. April 21,1972. motions to The notice Dickson, 532, In State v. 53 Wis.2d 193 did not recite that the extension by was N.W.2d 17 the court said: order of the court and it failed to state case,

“In the cause for the instant there was extension. The no order tran- script completed 24, 1972, of the court on which could have March been dis- and Toulon’s motion obeyed. The record shows that Judge verdict was 7, 1972, made on Traeger April relied document bear- date originally scheduled. caption, Chambers,’ Nagle’s ‘Circuit mo- Court 11, tions were not filed April and rubber until stamped with the name 1972. of the Subsequent clerk of court. A extensions were made by direction issued court for 21, 1972, clerk cause after April is not an order of the court in the are not sense contested legal used in Toulon. procedures. Section 269.27, Stats., makes it clear that orders sequence “Under this relating events issued ‘out may of court’ only by made to the extension of time on the filing and or, judges cases, in the appropriate motions, determination of the trial court court commissioners. Nowhere in the ultimately granted Nagle’s motion for a statutory recitation of the powers and new trial on the issue damages with an duties of a clerk of court is there any Toulon, option to pursuant to Powers v. grant power to issue orders over his Allstate (1960), Ins. Co. 78, 10 Wis.2d own signature. 393, N.W.2d but denied the rest of Na- gle’s “It is motions. recognized well in Wisconsin that a clerk of court not exercise any judi- “We find the decision of the trial court on powers. cial Wisconsin Lumber & Supply the postverdict persuasive. motions to be Co. v. (1934), 137, Dahl 214 Wis. 252 N.W. Unfortunately the record does not show 714, that, held in the absence of specific that the granted extension 7, from April grant power, a clerk of court 1972, could not April 21, 1972, order of authorize the calendaring of cases for tri- cause, court for as required by sec. al. The limitations powers on the 270.49, of a Stats. Loomans v. Milwaukee clerk of court were further defined in Mut. Ins. (1968), Co. 38 Wis.2d Pacific Nat. Fire Ins. Co. v. Irmiger 318; N.W.2d Anderson v. Eggert (1940), (1949), Wis. N.W.2d 365; 291 N.W. Wis. Beck v. 92, wherein we said: (1938), Wallmow 226 Wis. 277 N.W. “ determine, therefore, ‘... We acts of the clerk of the court are instant order clerical, granting ministerial a new trial on the and he may issue of judicial damages, exercise with power option to except accept in ac- cordance lesser amount with and denying Nagle’s the strict other language of a statute motions is ineffective conferring such and void. power upon Graf v. him.’ Gerber 72, 76, 26 Wis.2d “It is apparent thus the clerk could N.W.2d 863.” not issue a directive having the authority and dignity of a court and, fact, These authorities representative in the instant case the clerk attempted no question law on the prop- stand for the such usurpation of power. It did not osition that a clerk of absent statute- undisposed question orders of. The to be authority, power has no to issue ry a clerk’s signature, filing over his or her own determined is this: Did the ju- requires directive whiсh the exercise time had demurrer after the for answer dicial discretion is not an “order of the expired, without leave court or con- contemplation court” of law. within sent, application judg- before the but ment, authority the clerk of the divest specific In certain instances the clerk of enter the judg- conferred statute to court in with Wyoming has been vested instance, powers nature. For it clear that unless ment? We think entry Rule W.R.C.P. authorizes the was a the clerk was not nullity, demurrer However, judgments by default the clerk. judgment. authorized to enter default Osborn, in the case of Kimbel v. we supra, he has no Acting ministerially only, pow- power held that the of the clerk of the court of an an- sufficiency er to determine the to enter judgments provided by default as to form pleading, swer or other either as statute6 only judg- allows the clerk to enter substance, whether, if filed out of or or ments for fixed the sums. We said that time, on file. it shall be allowed to remain grant statute does not any to clerk judge may the court or determine Only discretionary power emphasized and we questions. those that the clerk’s ministe- authority purely pleading to a on the objection “An Osborn, rial in character. Kimbel v. 156 may that it was filed out of time ground P.2d at 288. We said at 287 of that same p. waived, and the court in the exercise be opinion: to strike may of a sound discretion refuse reasonably apparent “It is from the views though it as it from the files and consider expressed by the authorities reviewed in time. Under section above filed above that statutes authorizing Clerks be ex- quoted, the time for answer judgments enter in certain cases should tended, (Comp.Stat.1910) and section 4418 be strictly construed and unless the letter judge that the or a there- provides with, complied regards of the law is vacation, may, good of in cause power granted, the action of such shown, filing any the time for extend officials must be treated as void.” just. such terms as are If pleading upon In Bertagnolli Bros. v. Bertagnolli, supra, had moved to strike the de- plaintiff the clerk judgment entered a default as he files, might the court murrer from was authorized to do statute. But the the motion and allowed have overruled judgment was entered at a time when there stand, which would pleading was a demurrer to the on file and complaint and subse- excepted unless conclusive which demurrer had been filed after the Haight, v. set asidе. Parker quently 14 time statutory filing the answer and 548; v. Adm’r Ohio Cir.Ct. Newsom’s papers expired. other had entry Thus the 240; Ran, Railway v. Seymour 18 Ohio judgment by the clerk had the effect 236; Co., Lyons 4 N.E. v. 44 Ohio St. overruling the demurrer. This was— (Ohio) Bui. Fidelity Lodge, Wkly. Law said this court—the exercise of a 97; Gardner, Wkly. v. Law Hengehold beyond power function which was 958; Williams, 6 (Ohio) Carver v. Bui. the clerk of the court. showing (Ohio) Bui. 672. The Wkly.Law We said: prevent or sufficient necessary filed striking pleading from the files of a question presented “The goes this case question out of time is not involved in the jurisdiction, to the for it involves the considered; the being presented now authority power of the clerk to act at all, point possesses material is that the court view of the fact that a demurrer to determine the matter.” judgment power had been filed before ap- plied entered, for or and remained on file P. at 375-376. Osborn, supra, superseded by adoption

6. Kimbel v. of Rule dealt with construc- later tion of W.R.S. 89-1207 which was See: Rule W.R.C.P. W.R.C.P. merely executes the clerk judgment Bertagnolli between analogy I see an Hence of him.” requires the law what the instant matter —if at bar. the case judgment so appear it must is to be followed—it Bertagnolli the rule of clerk was within entered entry of the “Notice must be said that statute, authority conferred not substi- Setting” was not and could void.’ will be otherwise an extension granting court order tute for a com- especially significant “This Court’s decide a motion of time within which to last above language quoted ment in the then, case, there If that be new trial. thereof.” last sentence appears extension, juris- this court has no being no Presbyterian notice of First diction because also: Cheshire See (1942); Church, it another if it be 221 N.C. S.E.2d say way, filed late. To Kelone, La.App., 209 So.2d Setting” clerk’s “Notice of Kelone argued that the Ber- taken from to be (1968). The lesson extending an order the time constituted cases is other cited Kimbel and tagnolli, trial could the motion for new within which of court is vested a clerk that even where decided, then—under be considered enter rule) power with the (or by statute clerk was without authori- Bertagnolli—the is doing so the clerk in judgments, the judicial discretion and ty to exercise cannot capacity and acting in a ministerial purposé. for this entry nullity was a traditionally areas power to extend that Osborn, con- supra, v. we In Kimbel whom judge by the of the court reserved to which authorizes sidеred this same statute noted, As we have employed. the clerk is We judgment. enter a default the clerk to delegate pow- his judge the himself cannot observation as we following made the of court. 14 duties to the clerk ers and 156 P.2d Bertagnolli, supra, harked back 35, supra. Clerks Court § C.J.S. at 283-284: authorities, the I am of Considering these Bertagnol- Brothers v. Bertagnolli in “So in a clerk of court opinion by that action 374, 375, li, 228,148 decided in P. Wyo. new trial hearing for a motion for setting a 1905, supra, the law of before 1915with an “order of the court” cannot amount to to the said with reference this Court if, 59(f), extension under Rule granting authority thereunder that: Clerk’s chance, places the time setting the “ held, under such generally ‘It is limitation. I 60-day the argument past statute, judgment it directs the that 59(f) for the Rule hold that would entered, the clerk acts be and judge is granted, the trial extension capacity; in a ministerial merely action, affirmative required to take some ground validity the of stat- upon that record, an order and to issue clear on conferring authority upon such utes that an extension specifically stating Ass’n, upheld. clerk is Utah etc. See filed that the order must be granted and 63, Bowman, 113 P. Ann. 38 Utah 1-16-301, W.S.1977.7 Under pursuant to § 1913B, The court in the case Cas. 334. 59(f), this expressed by the conditions cited, power of this of the speaking judge on issued either order can be clerk, say: duty imposed by “This of the request initiative or at his own law, discretionary the clerk has no such a decision is within parties. Clearly act in powers respect with thereto. His discretion, is of such but the decision his entering judgment such a is no more judge delegate cannot nature that discretionary 59(f) or than his act in court. Rule to his clerk of authority the verdict action entering judgment upon contemplate any simply does not trial except the jury finding authority of a or the of the court or any person judge who is im- since it is the judge would be. In either case the law himself motion. ruling on the charged with entering and in poses duty, granted in the action. pertinent part: or order made provides the relief 7. 1-16-301 judgments orders must be entered in “All clearly journal specify of the court and

H29 though even record reflects appeals we left similar passing note in I State, jurisdictional imperfection. patently This is Murry Wyo., open questions all of those who have felt the unfair to (1981). There noted: P.2d 26 we prior sting of this court’s orders of dismiss- setting does contain a “The record mе, majority’s al. For decision to de- hearing for a new trial for motion on its the effect of cide this case merits has made the clerk December late discarding our rule that a longstanding Assuming on November appeal automatically deprives notice of to be or both of these occurrences either jurisdiction. Wyoming Supreme Court of (oral by the granting valid of continuance judge contemporaneous without a district Thus, all of the cast regret I votes I have continu- granting record thereof appeals upon for the dismissal of past * * court), the clerk of ance Rules of grounds Wyoming com- P.2d at Procedure have not been Appellate vote, with, I cannot as I plied again doubt as or not expressed to whether years, nearly eight have for to automatical- setting by pronouncement an oral ly appellant right appel- to the deny an satisfy provision would the extension clerk in this the fail- processes late court due to of Rule W.R.Cr.P. comply appel- with timely ure a rule on the should be dis- merits will, hereafter, I procedure. late consider because there is no “order of missed appellate for a late filing each excuse grants in the record which an exten- court” as the just majority its has done merits — which to the new-tri- sion within determine case. this motion motion. The was deemed denied al days which date within 26, 1981. the notice of

was June Since 23, 1981, not filed

appeal July until not, therefore, Rule filed in accord with W.R.A.P.,

2.01, filing and the untimely appeal has heretofore been held notice LIVESTOCK, INC., AND FARMS RUTAR State, jurisdictional. Murry supra; v. Corporation, Rudolph Wyoming J. Berger, Wyo., (1979); v. 600 P.2d State Rutar, (Plaintiffs), Appellants Ruppert, Wyo., v. 541 P.2d 1042 Snell v. VonFeldt, (1975); Rutledge supra v. at n.3. Fuss, Margie D. D. Ronald FUSS judgment, the issue available my wife, Appellees husband appel- our review concerns the denial of (Defendants), 60(b), I would lant’s W.R.C.P. motion. that a review of precludes hold the briefs v. of the trial discussion court’s denial acting Through Wyoming, ‍‌‌‌‌​​‌​‌​​​‌​‌‌‌‌​​​‌​​‌​‌‌‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌‌‌‍The STATE motion since failed appellants Rule 60 have AND FISH the WYOMING GAME any cogent authority posi- to cite for their COMMISSION, Appellee (Defendant tion. For that reason not address I would Third-Party Plaintiff), Jones, Elder P.2d Wyo., the issue. (1980); Merritt v. and McIn- McIntyre Alma and Lillian Leon EISENBARTH Center, 613 P.2d 206 tyre Wyo., Garden Eisenbarth, (Third-Party Appellees (1980). Defendants). majority I would add this caveat: No. 5684. the court have resolved decide this case spite merits in on its of what I consider to Supreme Wyoming. Court jurisdictional says be a clear defect. This Oct. to me that the will dismiss some majority where the appeals requirements but,

jurisdictionally defective if it suits fancy,

their will refuse to dismiss other

Case Details

Case Name: Blake v. Rupe

Court Name: Wyoming Supreme Court

Date Published: Sep 14, 1982

Citation: 651 P.2d 1096

Docket Number: 5576, 5577

Court Abbreviation: Wyo.