Opinion
No. 1937
August 13, 1935
APPEAL AND ERROR — DISMISSAL — SECOND APPEAL PROCEEDINGS — BRIEFS.
1. Dismissal for failure of plaintiff in error to timely file brief and abstract does not affirm judgment so as to prevent commencement of second proceeding in error within statutory time (Rules of the Supreme Court, rules 15, 21, 37; Rev. St. 1931, § 89-4816, as amended by Laws 1935, c. 111). 2. Failure of plaintiff in error to file brief or ask extension before time expired, as result of mistake of stenographer in making note of time of filing petition in error, held not to justify motion of defendant in error to dismiss appeal, since dismissal would only accomplish delay and postpone final disposition of case, in view of fact that plaintiff in error had ample time to perfect another proceeding (Rules of the Supreme Court, rules 15, 21, 37; Rev. St. 1931, § 89-4816, as amended by Laws 1935, c. 111).
ERROR to the District Court, Converse County; C.O. BROWN, Judge.
In support of the motion to dismiss there was a brief and oral arguments by T.C. Daniels, of Douglas, Wyoming, and Kenneth C. Kellar, of Lead, South Dakota, for defendant in error.
The proceedings should be dismissed for the following reasons: (a) Petition in error was filed out of time; (b) Plaintiffs in error have not complied with the rules respecting the serving and filing of briefs; (c) They have failed to file four briefs with the clerk as required by Rule No. 15; (d) They have failed and neglected to file three copies of the abstract of the record, as required by Rule No. 37; (e) They have failed to secure an extension of time for compliance with the statutes and rules of this court within the time specified by law. The excuses offered by plaintiffs in error fall far short of showing any such "unavoidable casualty" or "overwhelming" necessity, as defined and interpreted by an unbroken line of decisions of this court. Cronkhite v. Bothwell, 3 Wyo. 739; Robertson v. Shorrow, 10 Wyo. 368; Grippen v. State, (Wyo.) 124 P. 764; Ford v. Townsend, (Wyo.) 143 P. 356; State v. Bramblette, (Wyo.) 295 P. 800; Lawer Auto Supply v. Teton Auto Company, (Wyo.) 5 P.2d 306; Laramie County v. Goshen County, (Wyo.) 147 P. 621; Laramie County v. Platte County, (Wyo.) 147 P. 622; Inman v. City of Cheyenne, (Wyo.) 275 P. 115. In the case at bar, not only were the briefs not filed in time, but no abstract was presented in conformity with Rule No. 37. The showing of plaintiffs in error is merely one of miscalculation of time, which this court has repeatedly held is not satisfactory evidence of unavoidable casualty or overwhelming necessity. The latest pronouncement of this court upon the question is to be found in the case of Lawer Auto Supply v. Teton Auto Company, 43 Wyo. 349, 5 P.2d 306.
In opposition to the motion to dismiss, there was a brief and oral argument by G.R. Hagens, of Casper, filed for plaintiffs in error.
The following cases have been dismissed for failure to comply with the rules: Cronkhite v. Bothwell, 3 Wyo. 739; Robertson v. Shorow Co., 10 Wyo. 368; Sheehan v. Ditch Company, 12 Wyo. 176; Cook v. National Bank, 13 Wyo. 187; Small v. Savings Bank, 16 Wyo. 126; Krause v. Mathews, 16 Wyo. 140; Grippen v. State, 20 Wyo. 486; Lobell v. Company, 21 Wyo. 342; Yeager v. State, 22 Wyo. 194; Ford v. Townsend, 22 Wyo. 397; Laramie County v. Goshen County, 23 Wyo. 207; Edwards v. Fourt, 23 Wyo. 366; Pearce v. Holm, 23 Wyo. 417; Bank of Cody v. Stout, 24 Wyo. 106; Boner v. Bank, 25 Wyo. 88; Brown v. Brown, 29 Wyo. 60; Budd v. Roy, 26 Wyo. 210; Sheep Company v. Oil Company, 29 Wyo. 59; Atkins v. Hunsaker, 29 Wyo. 411; Nelson v. Company, 36 Wyo. 245; State v. Cannon, 37 Wyo. 474; Woodruff v. Light Power Company, 38 Wyo. 70; State v. Kelly, 33 Wyo. 420; Inman v. City of Cheyenne, 40 Wyo. 72; State v. Bramblette, 42 Wyo. 405; Lawer Auto Supply Company v. Teton Auto Company, 45 Wyo. 349. The proceedings in the foregoing cases were deemed insufficient to show unavoidable casualty or other circumstances justifying a suspension of the rule. On the other hand, the proceedings in the following cases have been held to show unavoidable casualty or overwhelming necessity, and leave was granted to serve and file briefs out of time. Phillips v. Brill, 15 Wyo. 521; U.P.R.R. Co. v. Grace, 22 Wyo. 234; Reynolds v. Morton, 22 Wyo. 478; Nicholson v. State, 23 Wyo. 482; McGinnis v. Beatty, 27 Wyo. 287; Fried v. Guiberson, 28 Wyo. 208; Stirrett v. Stirrett, 35 Wyo. 1. It has also been held by this court that an order of dismissal does not operate to affirm the judgment, and plaintiffs may file new proceedings on appeal if within the year. For this reason a dismissal for failure to file briefs in time should not be granted. Boner v. Bank, 25 Wyo. 260. The court is not inclined to dismiss where plaintiff in error has right to bring new appeal. Ryan v. Snyder, 27 Wyo. 512. It has always been the rule, that if a motion is pending, time for filing briefs is automatically extended without an application and without an order therefor. Miller v. N.Y. Oil Co., 32 Wyo. 483. The court will not dismiss for violation of Rule No. 37, where good faith is apparent. Lumber Company v. Thompson, 41 P.2d 264; Simpson v. B. L. Ass'n., 45 Wyo. 425. Plaintiffs in error have one year from the time of the final order, in which to appeal to the Supreme Court, notwithstanding Chapter 111, Laws 1935, limiting time to six months. Every law takes effect 90 days after adjournment of the legislature unless another effective date is fixed therein. Sec. 112-105, R.S. A statute reducing the time for taking an appeal does not apply to proceedings in which judgment has been previously rendered, unless the intention that it shall have a retroactive effect is plainly expressed. 10 C.J. 1042; Melde v. Reynolds, (Cal.) 52 P. 491; Pignaz v. Burnett, (Cal.) 51 P. 48; Bell v. Bearman, (Okla.) 133 P. 188; Rolater v. Strain, 119 P. 992; Wilson v. Kryger, (N.D.) 143 N.W. 764; Cook v. Massey, (Ida.) 35 A.L.R. 200. An amendment or repeal of a statute does not affect pending actions. Sec. 112-104, R.S. A statute which shortens the time for appeal has no retroactive effect, and does not affect cases arising before the statute becomes effective. Stephens v. Williams, (Ark.) 183 S.W. 527; Sammis v. Bennett, (Fla.) 22 L.R.A. 48; George v. George, 191 N.W. 457; Rogers v. Trumbull, (Wash.) 73 P. 380.
This is a proceeding in error for review of a judgment entered December 12, 1934. The motion for a new trial was overruled December 29, 1934, and the petition in error, alleging error in the overruling of that motion, was filed in this court May 10, 1935. The plaintiffs in error failed to serve or file their brief and abstract within the time allowed by rule, and the time expired July 9, 1935. Rules 15 and 37, 42 Wyo. 534, 540. Thereafter, on July 15 and 26, plaintiffs in error filed motions, with supporting affidavits, for an order allowing them additional time to serve and file their brief and abstract which have been prepared and served and are now in the hands of the clerk tendered for filing. The defendant in error has filed a motion to dismiss for failure to comply with the above rules. See Rule 21, 42 Wyo. 536.
By the statute in effect when the judgment was rendered and the motion for a new trial overruled, the time allowed for commencing a proceeding in error was one year from the overruling of the motion. § 89-4816, R.S. 1931, was construed in Conradt v. Lepper, 13 Wyo. 99, 78 P. 1, 3 Ann. Cas. 627. An amendment by the last legislature shortens the time to six months. Laws 1935, ch. 111. The amendatory act fixed no time when it should take effect, and it therefore became effective ninety days after February 16, 1935, the date of adjournment of the legislative session. § 112-105, R.S. 1931. It is not necessary to decide precisely what effect the amendment has with reference to the time allowed for commencing a proceeding in error in this case. It may have no application at all. See, § 112-104, R.S. 1931; Canaan Twp. v. Board, 46 Oh. St. 694; 23 N.E. 492; Rolater v. Strain, 31 Okla. 58, 119 P. 992; 3 C.J. 1042. If it has any application, we think it does not limit the time to less than six months after the amendment took effect. See, Wilson v. Kryger, 26 N.D. 77, 143 N.W. 764, 51 L.R.A. (N.S.) 760. In either view the plaintiff in error has ample time to commence a second proceeding in error if this one should now be dismissed. A dismissal for failure of plaintiff in error to file his brief and abstract in time does not have the effect of an affirmance of the judgment so as to prevent the commencement of a second proceeding in error within the statutory time. Boner v. Fall River County Bank, 25 Wyo. 260, 168 P. 726. In acting on the motions now before us, we may consider the probability of such new proceedings which would serve to prolong the period of litigation and bring further labors upon both counsel and the court. Stirrett v. Stirrett, 35 Wyo. 1, 244 P. 1006.
There is no reason to suppose that the plaintiffs in error are not acting in good faith in seeking a reversal of the judgment, or that they will not exercise their right to commence a second proceeding should this one be dismissed. Their failure to file their brief and abstract or to ask an extension, before the time expired, was the result of the mistake of their attorneys' stenographer in making note of the time of filing the petition in error. Since the discovery of their default they have acted promptly in applying for leave to file their brief and abstract. If leave be granted, the case should be matured for hearing in time to be placed on the docket for the next term. A dismissal followed by a second proceeding will cause considerable delay which we suppose would be of no advantage to defendant in error.
In Stirrett v. Stirrett, supra, a motion on similar grounds to dismiss the proceeding in error was denied, and plaintiff in error given additional time in which to file his brief, when it appeared that a dismissal might not permanently settle the rights of the parties and might serve merely to postpone a decision and to cause unnecessary labor and expense. We think it proper that the same course be followed in the present case.
The motion to dismiss will be denied. Plaintiffs in error will be granted leave to file their brief and abstract on or before August 20, 1935, and the defendant in error will have 45 days thereafter in which to serve and file his brief.
RINER, J., concurs; BLUME, J., not sitting.