Opinion
No. 2148
May 3, 1940
APPEAL AND ERROR — NOTICE SERVED OUT OF TIME — DISMISSAL.
1. Where judgment form for clerk's guidance in entering judgment was dated March 13, 1939, and judgment was entered in journal of court on March 14, 1939, notice of appeal was served on March 30, 1939, and notice of appeal was filed in office of clerk of district court on April 1, 1939, appeal was required to be dismissed since more than ten days had expired after entry of judgment and filing of notice of appeal.
APPEAL from the District Court, Big Horn County; P.W. METZ, Judge.
For the respondent, the cause was submitted on motion to dismiss, and on the brief of Ernest J. Goppert of Cody.
Appellant failed to serve and file a notice of appeal within ten days after the entry of the judgment. Sec. 89-4902, R.S. 1931; Hahn v. Citizens' State Bank, 25 Wyo. 467; Gulbertson v. Ainsworth, 26 Wyo. 214; Spencer v. Loewenstein, 29 Wyo. 31; In re Big Bend Drainage Dist., 29 Wyo. 50; State v. Holmes, 43 Wyo. 66; Wyoming Automotive Co. v. Weisflog, 47 Wyo. 32; Goodrich v. Bank, 26 Wyo. 42; McGinnis v. Beatty, 27 Wyo. 287; Koch v. Koch, 41 Wyo. 450; Lindback v. Lackey, 41 Wyo. 493; Simpson v. Occidental Building and Loan Ass'n., 45 Wyo. 425. The appeal should be dismissed for the further reason that the abstract of the record fails to show the service and filing of a notice of appeal. Supreme Court Rule No. 37. 4 C.J.S. 1473, 1483, 1485; Brewer v. Folsom Brothers Company, 43 Wyo. 433; Fryer v. Campbell, 46 Wyo. 491; Scott v. Ward, 49 Wyo. 243; Farmers State Bank v. Corporation, 48 Wyo. 319; Wyodak Chemical Company v. Board of Land Com'rs., 51 Wyo. 265; Simpson v. Occidental Building Loan Association, 45 Wyo. 425.
For the appellant, Charles L. Brome of Basin and Wm. C. Snow of Cheyenne, filed no brief and made no opposition to the motion to dismiss.
This cause has been undertaken to be brought here by the direct appeal method of appellate procedure to review a judgment of the district court of Big Horn County. The record is in this condition: A judgment form for the Clerk's guidance in entering the judgment rendered in the cause and from which the appeal is endeavored to be taken is dated March 13, 1939; it was filed in the office of the Clerk of the District Court aforesaid on the day following its date, and the judgment was entered in the journal of that court on the date the form above mentioned was filed, i.e., March 14, 1939. The notice of appeal from this judgment is not dated, but discloses that it was served by an acceptance of service on the part of respondent's counsel on March 30, 1939. The notice itself was filed in the office of the Clerk of the District Court of Big Horn County on April 1, 1939, more than ten days after the judgment attempted to be appealed from was entered.
Respondent has filed her motion to dismiss the appeal, relying upon Hahn v. Citizens' State Bank et al., 25 Wyo. 467, 171 P. 889, 172 P. 705; Culbertson v. Ainsworth, 26 Wyo. 214, 181 P. 418, 419, and many other decisions rendered by this court during the past two decades. See Spencer v. Loewenstein, 29 Wyo. 31, 207 P. 1098; In re Big Bend Drainage District, 29 Wyo. 50, 208 P. 872, 873; Koch v. Koch, 41 Wyo. 450, 287 P. 85; Lindback v. Lackey et al., 41 Wyo. 493, 287 P. 320; State v. Holmes, 43 Wyo. 66, 296 P. 1077; Simpson v. Occidental Building Loan Assn., 45 Wyo. 425, 19 P.2d 958; Wyoming Automotive Co. v. Weisflog, 47 Wyo. 32, 30 P.2d 490; Farmers State Bank of Riverton v. Investors Guaranty Corporation, 48 Wyo. 319, 324, 45 P.2d 1057.
On the authority of these decisions the cause must be dismissed.
Dismissed.
KIMBALL and BLUME, JJ., concur.