Opinion
Reynoldss&sLathrop, Sundance, in support of petition for rehearing.
PER CURIAM.
Counsel for respondents in the brief on Petition for Rehearing argue that (1) the correct decision of a trial court will not be reversed on appeal even if it is founded either in part or entirely upon wrong theories or premises, and (2) in the present case the trial court had the right to dismiss the appeal from the land board because no proper certificate was attached.
Counsel's position seems to be that we should presume the trial court to have dismissed the appeal from the land board on the ground that the proper certificate was not attached. This would be a violent presumption on our part in view of defendant's motion to dismiss, limited as it was to the ground that the appeal from the land board was not taken in time--especially, since the court's order was based solely on said motion. The order read, inter alia:
'That 'the motion to dismiss appeal' of the Appellees in the above-entitled cause as filed herein September 28, A.D., 1955, by said Appellees' attorneys of record, Messrs. Reynoldss&sLathrop, by Otis Reynolds, Esq., be and the same hereby is granted, allowed and sustained.' (Emphasis supplied.)
We think we should rather indulge in the presumption that the trial court acted upon the motion filed by the respondent and upon nothing else. This would seem to follow from the rule stated in the original opinion that a court will, as a matter of general practice, review only those issues and questions submitted to the trial court.
We stated in the former opinion that the 'Memorandum of Decision * * *' of the trial court will not be considered in determining the issues herein. That statement was not necessary to our decision; and we should, we think, leave that matter open for future consideration. In some jurisdictions, at least, the lower court's opinion may be considered to ascertain the grounds or reason for the decision of the trial court. 4 C.J.S., Appeal and Error, § 734, at p. 1210; 3 Am.Jur., Appeal and Error, § 595; Colorado Fuels&sIron Co. v. Adams, 14 Colo.App. 84, 60 P. 367, 375.
Assuming, without deciding, that in this case the trial court would upon return of the record to it have the right to dismiss the case for want of the signature of the land commissioner, the court without doubt would have a right--at least if a motion for diminution of the record were timely filed--to grant such motion and have the record corrected. In a case startlingly similar to the one at bar, the United States Supreme Court said:
'But in the case at bar the certificate not only begins with setting out the name and office of the clerk as the maker of the certificate, but has appended to it the seal of the court, and lacks only the clerk's signature to make it conform to the best precedents. The question presented is not one of no authentication, but of irregular or imperfect authentication; not of jurisdiction, but of practice. It is therefore within the discretion of this court to allow the defect to be supplied. Considering that the motion to dismiss was not made until it was too late to take a new appeal or writ of error, justice requires that the record should be permitted to be withdrawn for the purpose of having the certificate of authentication perfected by adding the signature of the clerk.' Idahos&sOregon Land Improvement Co. v. Bradbury, 132 U.S. 509, 513, 10 S.Ct. 177, 178, 33 L.Ed. 433.
See also 3 Am.Jur., Appeal and Error, § 617, n. 9; English v. Smith, 71 Wyo. 1, 253 P.2d 857.
Denied.