147 P. 169 | Wyo. | 1915
This case is before the court at this time on two motions of Wyoming Development Company, one of the defendants in error; one to quash the service of summons in error, and the other to dismiss the proceedings in error. Both motions present the same ultimate questions, viz: was the proceeding in error commenced in due time? The Statute, Section 5122, Comp. Stat. 1910, so far as applicable here, reads 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.” In this case there is no dispute as to the date the statute com.menced to run, that date being January 6, 1913. The petition in error was filed January 3, 1914, and summons in error was issued the same day and made returnable on or before August 1, 1914, and was served on said defendant in error July 22, 1914. Counsel for the moving defendant in error contend that to constitute the commencement of the proceedings the summons must not only be issued within the year but must, also, be served within sixty days from the date of the origirialsummons. In support of that contention they cite Section 4305, Comp. Stat. 1910, contained
Our conclusions are, that a summons in error when issued in term time should be made returnable on some day during the possible life of that term as limited by statute, that is, on some day before the first day of the ensuing term; and that the summons in this case could not legally have been made returnable at a later date, and not having been served within the legal life of the writ, and no service of summons having been made upon said defendant in error within sixty days after the time for commencing proceedings in error had expired, the proceedings were not commenced in time as to said defendant in error. So concluding, the motions will have to be sustained and the proceedings in error dismissed as to said defendant in error, Wyoming Development Company; and it is so ordered.
Dismissed as to Wyoming Development Company.