Lobell v. Stock Oil Co.

115 P. 69 | Wyo. | 1911

Beard, Chiee Justice.

This case is before the court at this time on the motion of defendant in error to dismiss the proceeding in error for the reason that the same was not commenced within the time allowed by law. The judgment of the District Court became final January 28, 1910, on which date the motion for a new trial was denied. The petition in error was filed in this court January 26, 1911, but no precipe for summons was filed until April 8, 1911, nor was any summons issued prior to that date. The motion to dismiss was filed March 29, 1911.

’ The statutes governing the question presented by the motion are as follows: Comp. St. 1910, Sec. 5109'. “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 the1 record.” Sec. 5111. “The proceedings to obtain such reversal, vacation, or modification, shall be by petition in error, filed in a court having power to make the reversal, vacation or modification, and setting forth the errors complained of; thereupon a summons shall issue and be served, or publication made, as in the commencement of an action, and a service on the attorney of record in the original case shall be sufficient;” etc.

Sec. 5112. “The summons mentioned in the last section shall, upon the written precipe of the plaintiff in error or his attorney, be issued by the clerk of the court in which the petition is filed, to the sheriff of any county in which the defendant in error, or his attorney of record is found;” etc.

Sec. 5122. “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;” etc.

The statutes with- reference to the commencement of an action are as follows: Sec. 4351. “A civil action must be commenced by filing in the office of the proper court a petition, and causing a summons to be issued thereon.”

•Sec. 4352. “The plaintiff shall also file with the clerk of the court a precipe, stating therein the names of the parties to the action, and demanding that a summons issue.” And in the chapter treating of the time of commencing actions, under the head of “general provisions,” Sec. 4305, “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 upon him, or on a co-defendant who is a joint contractor, or otherwise interested with him;” etc.

The question in this case is, whether the proceeding in error was commenced within the meaning of the statute, by the mere filing of the petition in error within one year from the rendition of the judgment, — no precipe for summons having been filed or summons issued until long after the expiration of that time. It is not claimed that there was any waiver of the issuance or service of summons, or any attempt to commence the proceeding within the year except the filing of the petition. Such being the case, if it was an original civil action, it is clear that, ■ under the provisions of section 4305, it could not be deemed to have been commenced prior to April 8, 1911, that being the date on which the precipe for summons was filed. And in either an original civil action or a proceeding in error the authority of the clerk to issue summons is the written precipe therefor. The statute does not prescribe what shall constitute the commencement of a proceeding in error, but does prescribe that it shall be by petition filed in the proper court, and thereupon a summons shall issue and be served, or publication made, “as in the commencement of, an action.” These provisions of our statute were taken from the statutes of Ohio, and the Supreme Court of that state, as early as the December, 1865, term, held, that while a proceeding in error is not in strictness a civil action under the code, no good reason exists for adopting a different rule in such proceedings from that prescribed by the code in civil actions. The court said: “In all suits or proceedings of an adversary character, the court can acquire no jurisdiction of the case for the purposes of trial or judgment until the party defendant is brought before it. And so long as the plaintiff neglects to have process issued, or any other steps taken with a view to bringing in the defendant, and thus giving jurisdiction to the court, his action or suit cannot properly be said to have been commenced- or. to he pending.” And it was held that by analogy the rule in civil actions applied to a proceeding in error, and that such proceeding was not commenced by the mere filing of the petition. (Robinson v. Orr, 16 O. St. 248.) The decision in that case has been approved and followed in that state since that time, in Bowen v. Bowen, 36 O. St. 312; McDonald v. Ketchener, 53 O. St. 519; R. R. Co. v. Ambach, 55 O. St. 553, and other cases; and was approved and applied by this court in Caldwell v. State, 12 Wyo. 206; and we see no reason for departing from that rule. No precipe for summons having been'filed by the plaintiff in error and nb summons having been issued within the time allowed for the commencement of proceedings in error, the motion to dismiss will have to be granted and the proceédings in error 'dismissed. Dismissed.

Potter, J., concurs. Scótt, J., did not sit.