Lawer Auto Supply v. Teton Auto Co.

*17 Riner, Justice. On January 27, 1925, in the District Court of Fremont County, Wyoming, the Lawer Auto Supply Company, a corporation, as plaintiff, obtained a judgment against Teton Auto Company, a corporation, L. B. Gaylord and A. C. Olson, as defendants, for the return of a certain auto truck described in the petition, and “unless the same is returned to plaintiff within ten days from the date hereof, that plaintiff have judgment against defendants Teton Auto Company and L. B. Gaylord for the sum of $800.” That judgment became final, as no proceedings to secure its review were ever completed, though it appears that several extensions of time for the preparation and presentation of a bill of exceptions were granted defendants, and though an undertaking on appeal seems to have been filed on December 7, 1925. On August 14, 1926, upon motion of plaintiff, the court made an order to the effect that plaintiff have execution against defendants for the value of the property found in the judgment, as above set out. What transpired in the interim is not at all clear from the papers before us, but finally on August 24, 1927, an execution was issued upon said judgment to obtain the satisfaction thereof. This execution was, upon motion of the defendants, quashed by an order made by the court on October 8, 1927. From this order the proceedings in error now before us have been prosecuted. An inspection of the file of the case shows a petition in error complaining of the order in question, a transcript of journal entries and original *18 papers in the cause, but no bill of exceptions. It is apparent that no bill was ever prepared and presented to the court below, and counsel urge that we can and should review the order attacked by the petition in error without the presence of a bill of exceptions in the record. The weight of authority is against this contention. In 4 C. J. 167, Sec. 1774, it is said: “Matters and proceedings occurring and taken subsequent to the judgment are not part of the appeal record, unless duly preserved by bill of exceptions or other appropriate means. “Orders entered after final judgment, to be reviewable, on appeal from the final judgment, must be preserved by a bill of exceptions, case, or statement. ’ ’ And see the many cases cited in the notes which abundantly support the text. And Section 1777, page 168, of the same authority, more specifically says: “Neither the order granting execution nor the motion therefor, * * * a motion to quash an execution, * * * are a part of the record proper.” In Corby v. Tracy, 62 Mo. 511, where it appeared that the appellate court was asked to review an order made by the court below overruling a motion to quash an execution issued in the cause, and it was insisted, as here, that the motion to quash, not being part of the record and not being saved in a bill of exceptions, the decision should be upheld, the opinion disposed of the point thus: “The plaintiff has urged upon our attention the fact, that the motion to quash the execution, even though it should be considered a proper step in the cause, is not embodied in the bill of exceptions; and under our previous decisions it cannot be considered. (State v. Wall, 15 Mo. 208; London v. King, 22 Mo. 336; Blount v. Zink, 55 Mo. 455.)” And the ruling was, therefore, affirmed. *19 The statements of the law already quoted are in entire harmony with decisions of this court extending over a period of many years. See — to give but a partial list—Syndicate Improvement Company v. Bradley, 6 Wyo. 171; Burns v. Chicago B. & Q. Ry. Co., 14 Wyo. 498; Littleton v. Burgess, 16 Wyo. 58; Grover Irrigation and Land Company v. Lovella Ditch, Reservoir and Irrigation Co., 21 Wyo. 204; Fitzpatrick v. Rogan, 27 Wyo. 388; “W” Sheep Co. v. Pine Dome Oil Co., 32 Wyo. 61; Newark Fire Insurance Co. v. Central Wyoming Automobile Club, et al., 36 Wyo. 540. It is argued that Section 5866, W. C. S. 1920, upholds plaintiff in error’s view of the matter. But in Burns v. Chicago B. & Q. Ry. Co., supra, it was said concerning that statute: “Again, although the statute provides that, ‘when the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing it to be noted at the end of the entry that he excepts’ (Rev. Stat. 1899, Sec. 3742), that provision applies only where the decision would properly be entered of record, if no exception was taken to it. (Lockhart v. Brown, 31 O. St. 431.) ” And in “W” Sheep Co. v. Pine Dome Oil Company, supra, this court, speaking- of a motion for new trial, remarked : “The bill is needed in any case to identify the motion; for even if there be a journal entry showing a motion to have been overruled, and there usually is, that entry would not, and could not properly, identify it. An attempt to do so by embodying the motion in the entry would be improper. ’ ’ Finally, Mr. Justice Potter, in the comparatively recent case of Newark Fire Insurance Co. v. Central Wyoming Automobile Club, et al., supra, used this language: *20 ‘ ‘ There is assigned as error in the petition in error only: 1. That the trial court erred in overruling the motion for a new trial. 2. That the order overruling the motion for a new trial is contrary to the court’s findings. 3. That the court erred in permitting plaintiff to withdraw their motion to modify the findings of fact and judgment, without notice to plaintiff in error or giving plaintiff in error an opportunity to be heard upon such motion to withdraw. But those motions are not in the bill of exceptions and could not be considered for any purpose whatever in this proceeding in error unless incorporated in such a bill. Under a long line of decisions of this court, motions do not constitute part of the record proper and hence they, together with the action of the court thereon, and the exception thereto, if any, must appear in a bill of exceptions to be considered by this court in a proceeding in error.” We are unable to see that there is any difference in principle between the various motions and orders before the court in the several Wyoming cases to which reference has been made and the motion and order now under consideration. There has been no attempt at distinction made by the plaintiff in error. We have carefully examined the statutory provisions which it has called to our attention, as well as the authorities it has cited concerning the point, but we cannot see that they lead to a conclusion at variance with the previous utterances of this court. As there is nothing before us in the case at bar which, for the reasons given, can be considered, upon the application of counsel for defendants in error, we are, perforce, obliged to affirm the decision concerning which review is sought, and it will be so ordered. Affirmed. Blume, C. J., and Kimball, J. concur.