78 P. 1 | Wyo. | 1904
The defendant in error moves the dismissal of the proceedings in error in this cause on the ground that the same was not commenced within one year after the rendition of the judgment complained of. It is conceded that the proceeding was not commenced within one year after the judgment was rendered, taking the date of the judgment as the date of its rendition, but that it was commenced within one year after the order of the court overruling the motion for new trial; and the question presented is whether the proceeding so instituted was commenced within the period allowed by law. The motion is based on the following statute:
“No proceeding to reverse, vacate or modify a judgment or final order shall be commenced unless within one year after the rendition of the judgment, or the making of the final order complained of; or, in case the person entitled*104 to such proceeding is an infant, a married woman, a person of unsound mind, or in prison, within one year, as aforesaid, exclusive of the time of such disability; Provided, however, That the court rendering such judgment or making such final order upon application of the party desiring to institute such proceeding and upon making to said court a sufficient showing that said party will be unavoidably prevented from instituting such proceeding within said time, shall, by an order duly entered of record, give to said party a reasonable extension of time, not exceeding eighteen months, within which to institute such proceeding.” (R. S., Sec. 4262, as amended by Chap. 28, Laws of 1901.)
According to the uniform holding of this court, no question will be considered on error from a judgment of the District Court which might properly have been presented to such court by a motion for new trial, unless such a motion is seasonably made presenting the question and an exception preserved to the ruling on the motion; and we have a rule of long standing to that effect, viz: “Rule 13. Nothing which could have been properly assigned as a ground for a new trial in the court below will be considered in this court, unless it shall appear that the same was properly presented to the court below by a motion for new trial, and that such motion was overruled and exception was at the time reserved to such ruling; all of which shall be embraced in the bill of exceptions. The ruling of the court below upon each matter presented by a motion for new trial shall be sufficiently questioned in this court by an assignment that the •court below erred in overruling such motion for a new trial.”
After a verdict of a jury, report of referee or master, or •decision by the court, a party deeming himself aggrieved is, for certain enumerated causes, allowed by statute, within the time therein limited, an absolute right to file a motion for new trial; and if any of the causes set up are found to be sufficient the statute requires the vacation of the verdict, report or decision and the granting of a new trial. (R. S., Sec. 3746.) The motion must be made at the term the ver-
For most purposes there can be little question about the date of the rendition of a judgment. Generally, no doubt, that fact will be determined by the date of the formal entry of the judgment itself. But the question here is the proper construction of the statute limiting proceedings in error, and whether for the purpose of such proceedings the date of the rendition of a judgment is to be determined according to the ordinary rule and upon a strict interpretation of those words, or whether, where a motion for new trial is necessary to a consideration of the questions in this court, the time when the order is made overruling the motion is to be regarded as the date of rendition from which the period prescribed for commencing proceedings in error will run.
In several of the states, where a motion for new trial is held to be essential to a review of questions that are proper to be presented to the trial court by such a motion, it is
In Washington, although a motion for new trial is not necessary for a review of questions once passed upon by the trial court, but such a motion is permitted by statute, and its filing suspends execution, it is held that the time for taking an appeal begins to run from the date of the order denying the motion, notwithstanding that the statute limits the time to ninety days from the entry of' final judgment. (State ex rel. v. Chapman (Wash.), 76 Pac., 525.) And proceedings taken before the determination of a pending motion have been held premature. (Inman et al. v. Estes, 104 Ga., 645; Colchen v. Ninde, 120 Ind., 88.)
The cases above referred to proceed upon the theory that a pending motion for a new trial, seasonably filed, keeps the cause in the trial court, and so long as it remains undisposed of, the judgment is not final within the meaning of the statutes regulating appeals. (See 2 Thompson
The code defines a judgment as the final determination of the rights of the parties in action; and a direction of the court or judge, made or entered in writing, and not included in a judgment, is an order. (R. S., Sec. 3751.) The code further provides that a judgment rendered or final order made by the District Court may be reversed, vacated or modified by the Supreme Court for errors appearing on the record. (R. S-, Sec. 4249.) And in prescribing what orders may be vacated, modified or reversed, it is provided that “an order affecting a substantial right in an action, when such order determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment, is a final order which may be vacated, modified or reversed.”
A judgment which this court is authorized to review on error is clearly that judicial act which the statute defines as a judgment, viz: “the final determination of the rights of the parties in action.” And we think it equally clear that the statute fixing the date of the rendition of the judgment as the commencement of the period of limitátion for prosecuting proceedings in error refers to a judgment that has become final for the purpose of instituting such proceedings. The evident purpose and intent of the statute is to allow one year from the time that a party may rightfully commence proceedings in this court for the correction of the errors complained of. It is unreasonable to presume that the Legislature intended the period of limitation to begin while the questions to be presented remain within the breast of the trial court and before the party is in a position to demand a review in the appellate tribunal; in other words, before the cause of action in this court accrues. As to those matters not requiring the consideration of the trial court upon a motion for new trial as a condition precedent to consideration in this court, the judgment will doubtless
It was urged on argument that the last clause of the section allowing an extension of time should be considered as showing an intention that the date of the actual rendition of the judgment independent of the motion for new trial was referred to. But we are unable to adopt that view. It is possible that other matters than a hearing upon and determination of the motion might delay the institution of proceedings in error; and we observe nothing in the clause to warrant' the presumption that it was inserted merely or even chiefly to overcome the difficulty of delays in the determination of the motion.
We are not unmindful of the decision of the Territorial Supreme Court in the case of Snyder v. James, 2 Wyo., 250. The question seems to have been presented in that case, hut the view we have taken of the statute does not appear to have been considered by the court. It was there held that a subsequent order reciting an agreement to a reduction of the judgment, and, modifying it accordingly, did not change the date of rendition so as to extend the time for instituting proceedings in error. Mr. Justice Peck
Motion to dismiss denied.
