Opinion
Nos. 1970-1974
May 12, 1936
APPEAL AND ERROR — DISMISSAL.
1. Failure of appellant to file record in Supreme Court within 60 days after it was filed in trial court, as required by statute and court rule, held to require dismissal of appeal, notwithstanding that severity of weather prevented stenographer's return of records to clerk of district court until after expiration of time for filing records in Supreme Court where records were not received until 2 days after receipt by clerk of district court and filing fee was not paid until 4 days thereafter (Rec. St. 1931, § 89-4910; Rules of Supreme Court, rule 35).
APPEALS from District Court, Sublette County; H.R. CHRISTMAS, Judge.
In support of the motions to dismiss there was oral argument by W.A. Muir of Rock Springs and by Ivan S. Jones of Kemmerer in opposition.
There were no briefs on Motions to Dismiss.
These five cases, here on direct appeal, are in the same condition. Records for the appeals were filed with the clerk of the district court November 9, 1935. The records were filed with the clerk of the Supreme Court January 17, 1936. In each case the respondent moves to dismiss the appeal on the ground that the record was not filed in this court within sixty days after it was filed in the trial court, as required by statute and rule. Sec. 89-4910, R.S. 1931; Rule 35, 42 Wyo. 538.
It is shown by affidavit that, after the records were filed in the district court, a stenographer was permitted to take them to Driggs, Idaho, to prepare abstracts of the records; after the abstracts were prepared the weather became so severe that for 18 days there was no mail service from Driggs, and for that reason the stenographer was unable to return the records to the clerk of the district court until about January 11, 1936, after the expiration of the time for filing the records in this court. The records were received by our clerk on January 13, but the filing fee was not paid until January 17.
Under these facts we cannot hold that the failure to comply with the rule can be excused. See Porter v. Carstensen, 44 Wyo. 49, 8 P.2d 446; Samuel v. Christensen-Garing, 47 Wyo. 331, 37 P.2d 680.
Appeals dismissed.