Fremont Lodge No. 11 v. Thompson, 154 P. 600

Fremont Lodge No. 11 v. Thompson

154 P. 600 | Wyo. | 1916

Beard, Justice.

The judgment of the district court which it is sought to reverse by this proceeding in error became final June 14, 1913. The petition in error was filed in this court October 7, 1914. The statute, Section 5122, Comp. Stat. 1910, is as follows: “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; * * * 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 proceedings.”

It is perfectly clear that the proceedings in error in this case were not commenced in time unless they'come within the provision for an extension of time beyond' the year. It appears from the record that on September 29! 19T4, on the application óf plaintiff in error, the judge of said court, at'chambers, made an order extending the timé 'for 'instituting such proceedings'until November 14, 1914.. That order wás made long after the year allowed for commencing procéedings in error hád expired, and unless it had' the *16effect of reviving such right, this proceeding was not instituted in time, and this court is without jurisdiction. In Casteel v. State, 9 Wyo. 267, (62 Pac. 348) this court construed a similar -provision with reference to extending the time for filing a motion for a new trial. That statute (Sec. 5416, R. S., now Sec. 6278, Comp. Stat. 1910), provided: “An application for a new trial shall be by motion upon written grounds, which shall be filed at the term the verdict is rendered, and * * * * * shall be filed within three (now ten) days after the verdict was rendered, unless additional time be granted 'by the court upon good cause shown.” Mr. Justice Corn, in delivering the opinion of the court said: “The statute requires that the motion shall be filed within three days after the verdict was rendered. This court has no power or authority to disregard or set aside this provision. It is mandatory and binding upon us, and no authority is lodged in this court to change or modify its requirements. The exceptions to its operation are clearly set out in the statute itself, and ample provision is also made for obtaining additional time in cases where a proper showing is made to bring to the knowledge of the district court that additional time is necessary. Where a defendant has suffered the time to elapse without any application to the court for additional time, his right is lost, and it is not in the power of this court or the district court to restore it in the face of the statute. * * * * * The utmost that can be inferred from the record is that after the expiration of the time, and when the defendant’s right was barred by the statute, application was made to the court to permit the filing of the motion in disregard and in violation of the statute. This the court had no power to do. The right of the defendant was lost by operation of law, and the court had no power to restore it.” In that case the party had but three days within which to file his motion or to apply for an extension of time, while in this case the plaintiff in. error had an entire year within which to commence his proceeding or to apply for more time. It did neither until more than three *17months after its right was barred 'by the statute. The right was lost and could not be restored by a subsequent order of the court or judge. In Caldwell v. State, 12 Wyo. 206 (74 Pac. 496) this court said: “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 excer-cised under its provisions, and the essential acts required to effect an appeal must be performed within the time prescribed.” And in King v. Penn, 43 O. St. 57 (N. E. 84) it is said: “That the commencement of a proceeding in error within the time prescribed by law is essential to clothe the reviewing court with jurisdiction to hear and determine it is too well settled to justify .further discussion, (citing cases). It follows that the parties may not by private agreement or consent, nor by voluntary appearance, confer upon this court power to hear and determine a proceeding in error commenced after the time expressly limited therefor.”

While the right exists, the statute authorizes the district court to extend-the time within which it may be exercised; but when the right is lost by operation of law, there is no power vested in the court to restore it. The right to bring proceedings in error having expired on June 14, 1914, the order of September 29, 1914, did not restore that right. The proceedings not having been brought within the time allowed by law, this court is without jurisdiction, and, therefore, the proceedings in error are dismissed by the court on its own motion. Dismissed.

POTTER, C. J., and ScoTT, J., concur.