196 P. 311 | Wyo. | 1921
This ease, here on direct appeal, has been heard the second time on a motion to dismiss, reinstatement having been ordered and a re-hearing granted after a former decision sustaining the motion. Thereupon the record on appeal was ordered returned to the district court, on appellant’s application, for amendment so as to include a certified copy of the journal entry of the order appealed from, the appeal having been dismissed for the reason that the record did not contain such journal entry or anything to show that the order had been entered. 26 Wyo. 409, 186 Pac. 120. The amended record contains a certified copy of the journal entry of the order and a certificate of the clerk of the district court that such order, dated March 3,1917, was entered on March 5, 1917.
After the amended record was returned to this court the respondent filed a renewal of the motion to dismiss on the grounds stated in the original motion and additional specified grounds. Briefly stated the_ grounds of the original motion are: 1. Insufficiency of the proceedings to give the court jurisdiction. 2. The failure of appellant to file briefs within sixty days after the filing of the record on appeal. And the following reasons are specified under the first ground: (A) That the record fails to show service of the notice of appeal within the time required by law after the entry of the order appealed from. (B) It fails to show service of specifications of error upon respondent or his attorney. (C) That specifications of error were not prepared and filed as required by section 8 of the direct appeal statute or otherwise. (D) That no record on appeal was prepared and filed as required by section 4 of the direct appeal statute. The renewed motion states in addition to the above, in substance: 1. That the appeal is from an order made on March 5,
Instead of following the order in which the several grounds are stated in the motions, they will be considered in the order seeming more convenient for discussion. The failure of the appellant to file his brief herein within sixty days after the filing of the record on appeal in this court, stated as the second ground of the original motion, was waived by respondent by his filing of a brief upon the merits without having objected to the delay in the filing of appellant’s brief. (Union Pac. R. R. Co. v. Grace, 22 Wyo. 234, 137 Pac. 881; Reynolds v. Morton, 22 Wyo. 378, 144 Pac. 18; Nicholson v. State, 23 Wyo. 482, 153 Pac. 749.) It was held in those cases that the filing of a brief out of time is not jurisdictional, and that the failure to file the same within the time required by the rules may be waived. The filing by the defendant in error of an application for an extension of time within which to file his answering brief was held such a waiver in U. P. v. Grace, supra; and in Reynolds v. Morton, supra, the waiver was held to result from a written stipulation of the
The notice of appeal was filed on March 10, 1917, seven days after the date of the order and five days after its entry. Written upon the face of and underneath the notice are the words and name, all appearing in the same handwriting, “Received copy of above M. H. Neil Attorney for Respondent.’’ M. H. Neil was the attorney for plaintiff and respondent, and his name is signed to respondent’s brief upon the merits filed in this court. The objection is made in the original motion that the record does not show service of the notice, that is, within ten days after the entry of the order appealed from, and counsel for respondent relies, in support of the objection, upon the principle established by our decisions that a notice filed or served before the entry of the judgment or order
“Upon the record, therefore, it does not appear that the notice was served after and not before the entry of the judgment, unless it may b.e presumed from the facts appearing by the record that it was so served, * * *. And we do not think the presumption legally or properly follows from the facts in the record that the notice was served within the time prescribed by the statute, though no doubt it might be presumed that it was served prior to the time the notice was filed and either before or on the date of such filing, from the fact that as filed the notice bears the endorsement acknowledging service as aforesaid. But that filing occurred on the next day after the entry of -the judgment, and the notice is dated * * * four days before the judgment was entered, making it possible for the notice to have been served prior to such entry.”
The .facts -of the present ease are different in that the notice as well as the acknowledgment of service is undated, and the- .only date upon the paper is that of filing, which was five days after the date of the filing and entry of the order appealed from. And, .though the order is dated March 3, 1917, it appears to have been made and signed by the district judge in chambers in. another county and district, making it not only possible but quite probable that the order .did not reach the office of the clerk of the court where the cause was pending until the day it was filed, on which day-also was entered, thus leaving, very little, if any, ground to assume that the notice may have been served or even written -before, the date of the entry
The two objections of the original motion with reference to the specifications of error may be considered together. The objection as to the filing of such specifications is not supported by the record, for it contains a paper entitled in the cause, and named at the head as part of the caption and by endorsement on the back ‘ ‘ Specifications of Error on Direct Appeal”, and bearing the clerk’s filing endorsement showing that it was filed on May 1, 1917. But there is nothing in the record to show a service of the specifications upon either the respondent or his attorney. An affidavit has been filed in this court evidently intended to supply that omission of the record, but it shows only that the paper was mailed from Cheyenne on April 28, 1917, to respondent’s attorney at Lusk, where the district court is held and said attorney then resided. Whether due service of specifications of error may properly be shown in this court by proof outside of the record, or whether the showing- made by the affidavit on file here would be sufficient as such proof, need not be considered. It would certainly be the better practice for the record to show the fact of such service, but' unless the fact appears upon the paper itself as filed, or by some other paper also filed, the omission would not be the fault of the clerk. But an objection, or the right to object; to the time or manner of service of the specifications, or a failure to serve the same, may be waived, since such service is clearly not jurisdictional; and it has been waived in this case by the filing of respon
Although the record was, when first prepared and filed, required to include the specifications of error, under the statute as originally enacted (L. 1917, Ch. 32, Sec. 6), service of the specifications was not required (id Sec. 8) until within ten days after the record has been prepared and filed. By an amendment of Section 6 in 1919, the paper is not to be included in the record as first prepared and filed, but is thereafter, when filed, to be attached thereto together with a certificate of the clerk authenticating it and thereupon becomes a part of the record. L. 1919, Ch. 15, Sec. 1, Comp. Stat. 1920, See. 6406. And, as explained in Hahn v. Citizen’s State Bank, 25 Wyo. 467, 171 Pac. 889, the purpose of filing and serving specifications of error is to point out the specific errors claimed to have been committed and relied on for a reversal for the information of opposing counsel and the reviewing court. Should it appear in any ease that no specifications of error had been filed there would, of course, be nothing to consider, and a dismissal of the appeal would, we suppose, necessarily result, or, if found to be authorized by statute and proper under the circumstances, an affirmance of the judgment.
One of the grounds stated in the renewal of the motion to dismiss is that at the time of the former hearing the record had not been certified to by the judge or clerk of the district court. ¥e think the record disproves that. There is a clerk’s certificate near the end of the amended record, which certificate is dated May 4, 1917, and has the seal of the court attached thereto, and the signature purports to be that of the person who was clerk at that time, and the only change which appears to have been made by the amended record in the order in which the several papers were included in the original seems to be the insertion of a page immediately preceding the said
The original certificate of the judge is do the effect that the pleadings and specifications of error,- the instruments numbered from 1 to 23 inclusive and attached to said .certificate and comprising the record are- all -and the true and correct pleadings and specifications of error 'as filed in the cause and “that-this record is true and correct in .every detail.” The • clerk’s original certificate — that
The clerk having originally certified that certain instruments preceding the certificate numbered as stated above are the- original instruments filed in the case, indicating, we think, all of the instruments so.filed, Rnd further, that the remaining instrument referred- to by its number as aforesaid, was a full, true and correct copy of certain stated orders of the court, is substantially the same as stating that the record -is true and correct, and should be given the same effect, we think, as -if the statutory words had been used - in the certificate. MThat is here stated is sufficient to dispose- also of- the last ground stated in the renewed motion to the effect that there is no certificate that the record contains all. or any of the plead
The second and third grounds of the renewed motion seem to be based upon a misconception of the character of this appellate proceeding. This is not a proceeding in error, but a so-called direct appeal, under a statute providing for it 'as a separate and independent method of reviewing civil and criminal causes in this court, in addition to the provisions of law for reviewing such causes on proceedings in error. That statute does not provide for a summons in error or precipe therefor, nor for a bill of exceptions, but, on the contrary, it provides for filing and serving a notice of appeal and, instead of a bill of exceptions, provides for a record on appeal to consist of the several papers and entries in the cause, including, if desired and necessary, a complete transcript of the testimony, certified to by the official court reporter as being true and correct.
The first ground of that motion, that this appellate proceeding was* not commenced or perfected until subsequent to April 17, 1920, is based, we, suppose, upon the new certificates to the record as amended, which were dated, respectively, that of the clerk, April 10, 1920, and of the judge on April 17, 1920. As shown above, the original record was authenticated by proper certificates, and in its then condition had been perfected within the time allowed by the statute. The new certificates of the judge and clerk were each erroneously entitled ‘ ‘ Amended certificate.”. Their jurpose was not to correct the former certificates but to certify to the correctness of the record as amended by including a certified copy of the journal entry of the order appealed from; the record having been returned to the district court for the purpose of permitting the record to be so amended. These latter or new certificates, it is true, perfect the record as amended, as permitted by an order of this court, but do not destroy
The point presented by the 5th ground of the renewed motion, that the appellant was estopped by the former decision of the court from thereafter correcting the record, having taken no previous steps to that end, and that there is no authority authorizing the court to suspend a judgment or decision for reasons or causes of which a party had notice prior to the submission of a cause, which he had not attempted to correct or supply, cannot be sustained. The order reinstating the cause and granting a rehearing was made and entered at the same term at which the appeal had been ordered dismissed, and the court clearly had authority to vacate that order during the term. And a rehearing having been granted, it left the cause in the same condition as it stood before the former submission of the motion to dismiss, so far as the question of jurisdiction is concerned, as well as the right of the appellant to take the necessary steps to procure an-amendment of the record, the latter, however, being subject to the control of the court in the, exercise of its judicial discretion upon a consideration of the pertinent facts and circumstances of the case. And the appellant certainly had a right to move for reinstatement or rehearing, or both, at least within the time allowed by the rules for filing a petition for rehearing, and a petition for rehearing, if filed within the time allowed by the rules, may be so filed during or after the term at which the order sought to be so reviewed was entered, and the court will thereupon retain jurisdiction until the petition is disposed of.
In Hahn v. Citizen’s State Bank, supra, the court re framed from deciding whether an application to amend a record on appeal could properly be granted after an order dismissing the appeal, when made in connection with a petition for rehearing, accompanied by a showing sufficient to justify a return of the record for amendment if
Though we hold that the court has jurisdiction, after an order dismissing an appeál for a defect in the record, to grant a motion to permit an amendment of .the record filed in connection with a motion to reinstate or-a petition for a rehearing, it should not be .understood that such a motion then filed for the first time will be granted in all cases or as a matter of right. But- whether it will or ought to be granted must depend upon- the facts and eir-■cumstanees of the particular case, as affecting the right to ■amend in view of the delay in the application, in addition to the showing ordinarily necessary to justify the return ■of a record for amendment.