74 P. 496 | Wyo. | 1903
On May 25th, 1903, the petition in error in this case was dismissed by this court, upon its own -motion, for want -of prosecution, and, on August 20th, 1903, the plaintiff in error filed his motion asking that the case be reinstated. The ground of the motion is, substantially, that plaintiff in error, who is in the penitentiary upon a conviction for a felony in this case, employed and paid counsel to prosecute his proceedings in error, but that such former counsel utterly neglected his interests and has finally left the State. The Attorney General calls attention to the fact that the return upon the summon in error does not show service of the summons upon the Prosecuting Attorney of the county where the judgment was rendered, as required by the statute, and alleges that his information is that in fact there has not been such service. That more than one year having elapsed since the rendition of the judgment,'it is now too late to make such service, and, if the case were reinstated, this court would be without jurisdiction to hear and decide it.
By Section 5422 of the Revised Statutes, as amended by Section 1, Chapter 63, Session Laws, 1901, it is provided that, in all criminal cases, after final judgment and within one year after the rendition of the judgment, proceedings to vacate, modify or annul such judgment may be begun in the Supreme Court by petition in error in the same man
The law is well settled that, while an appeal may be a matter of right under the statute, yet the right given by the statute must be exercised under its provisions, and the essential acts required to effect an appeal must be performed within the time prescribed. (Elliot Ap. Proc., 287.) The method required by the Legislature is exclusive; the requirements of the statute for taking and perfecting an appeal are deemed jurisdictional and must be substantially complied with. (2 Ency. Pl. & Pr., 16; Sholtz v. McIntyre, 136 Ill., 35; Fairbank v. Streeter, 142 Ill., 232.) Where there is no common law form of review, or it is not resorted to, the conditions and form of appeal depend entirely upon statute and cannot be changed or aided by judicial action. (People’s Ice Co. v. Steamer Excelsior, 43 Mich., 338.) We, of course, use the word appeal as designating generally any method provided by statute for removing a case from an inferior to a higher court for review, including the proceeding under our statute by petition in error. The principle above stated applies to them all alike. And, as our statute limits the time within which proceedings may be begun to one year after the rendition of the judgment, the single question presented is whether the proceedings were begun within the time, within the meaning of the statute.
The section authorizing proceedings in error in criminal cases provides that they may be begun by petition in error in the same manner as is provided for taking civil cases to the Supreme Court. The object and purpose of this section is to substitute the method by petition in error for that formerly in use, of a writ of error to be allowed, on good
Referring, then, to the Code of Civil Procedure, it is provided, by Section 3461, that, “An action shall be deemed commenced, within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him, or on a co-defendant who is a joint contractor, or otherwise united in interest with him; and when service by publication is proper, the action shall be deemed commenced at the date of the first publication, if the publication be regularly made.” And the following-section (3462) provides: “An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this chapter, when the party diligently endeavors to procure a service; but such attempt must be followed by service within sixty days.” Under these sections, it is held by the Ohio court that the action shall not be deemed com
These principles are applicable to this case. The sole defendant is the State, an artificial person, and the statute prescribes upon whom service of the summons shall be made, the Attorney General and the prosecuting officer of the county in which the judgment was rendered. Personal service being impossible, and the statute having prescribed the method of service, this court has no authority to substitute any other. There has been no service upon the prosecuting officer of the county, and the time within which it could be made is long since elapsed. It appears that some conversations, with reference to consent to an extension of time for filing briefs, have occurred between the Attorney General and counsel for plaintiff in error since the petition in error was filed, but they are clearly insufficient to constitute an appearance by the State, and, indeed, we do not understand that counsel makes any such claim.
There can be no propriety in reinstating the case merely to have it again stricken from the docket, upon the motion which the Attorney General gives notice he will present, and the application is therefore denied.
Motion denied.
