Faulkner v. Faulkner

191 P. 1068 | Wyo. | 1920

BeaRd, Chief Justice.

In this ease the respondents have filed and submitted a motion to strike from the files of this court the record for appeal and the transcript of testimony, and to dismiss the appeal upon a number of grounds, only a few of which need be considered. One of the grounds for the motion to strike the record on appeal from the files is that it is not certified by the judge of the district court as true and correct. The record on appeal as prepared by the clerk was certified by him January 28, 1919. At that time the Statute, Section 6, Chapter 32, S. L. 1917, required the record on appeal to be certified to by the judge and clerk of the district court as true and correct. The record as filed in this court is not in any manner certified by the judge; and for that rea'son is not such a record as the statute then required and should be stricken from the files of this court.

Respondent moves to dismiss the appeal for the reason, among others, that the record fails to show that at the time the appeal was taken any judgment or final order had been entered in the cause. In that respect the record here is in the same condition as the record in (Hahn v. Citizen’s State Bank, 25 Wyo. 467, 171 Pac. 889). In the opinion in that case the question is fully considered and discussed; and it would serve no good purpose to repeat here what was there said. That decision was adhered to on a petition for rehearing, (172 Pac. 705,) and was cited and followed in (Goodrich v. Big Horn County Bank, 174 Pac. 191). The record in the present case, like those in the cases cited, contains no journal entry of the judgment or decree, but simply a form of decree signed by the judge, without any transcript of the journal showing that it was ever entered, or, if a decree was in fact entered, when it was entered, or what it was. Even if the record in the present ease had been properly certified so that it could be considered by this court, the fact that it contains no transcript of any journal entry showing the entry of any judgment or decree, requires the dismissal of the appeal. Following the decisions in the cases above cited, the appeal is dismissed.

Appeal dismissed.

Potter, J., and Kimball, District Judge, concur. Blydenburgh, J. being unable to sit in this case, Hon. Ralph Kimball, Judge of the Sixth Judicial District, was called as a member of the court and sat in his stead.