Mitter v. Black Diamond Coal Co.

Beard, Chief Justice. In each of these cases the Black Diamond Coal Company, a corporation, seeks a reversal of the same judgment of the district court of Sweetwater County, in the case of M. Mit-ter against said company, and for that reason will be considered in one opinion. No. 998 is a proceeding brought under the direct appeal act, Chapter 32, SI L. 1917, in which case the record on appeal was filed in this court December 1, 1919; and No. 1005 is a proceeding in error in which the petition in error and praecipe for summons in error was filed February 7, 192Ó. In No. 998, the respondent filed a motion to dismiss the appeal upon the ground, with others, that this court is without jurisdiction to entertain the appeal. An examination of the record on appeal certified to this court discloses that the judgmént or decree appealed from was entered in the district court March 2, 1918, and the last order or ruling in the cause, except the ruling on a motion for a new trial, was entered March 23, 1918, and the notice of appeal was not served until February 19, 1919, and was filed February 24, 1919. The statute governing direct appeals, Section 2, Chapter 32, S. L. 1917, provides: “An appeal must be taken by serving a notice in writing to such effect, signed by the appellant, or his attorney, upon the opposite p.arty, or his attorney, within ten days from the entry of the order or judgment appealed from, and said notice of appeal shall be filed with the Clerk of the District [76] Court where the order or judgment appealed from is entered, within said ten days.” The statute providing for direct appeals makes no provision for a motion for a new trial, and the filing of such motion does not have the effect of extending the time for serving and filing the notice of appeal beyond the ten days from the entry of the judgment. No doubt a party may within ten days from the entry of the judgment serve and file a notice of appeal in order to preserve his right to bring the case to this court by direct appeal; and may also file a motion for a new trial where such motion is necessary to preserve a proper record for bringing the cause to this court by proceedings in error; but unless the notice of appeal is served and filed within the time required by the statute, the remedy by direct appeal is lost. As the notice of appeal in the present case was not served and filed within the time allowed therefor, this court acquired no jurisdiction by the filing therein of the record on appeal. For that reason the appeal will have to be dismissed, and it is so ordered. The two methods provided by our statutes to be pursued to obtain a reversal, modification or vacation of a judgment of the district court by the Supreme Court are entirely separate and independent methods, either of which a party may elect to pursue; but whether or not after bringing the cause to this court by one method and while that case is still pending he can also commence proceedings in this court by the other method we entertain grave doubts. But as that question has not been raised we do not decide it. In either case the statute and rules of court applicable to that particular method, must be followed. In the case now being considered, No. 1005, the defendant in error has filed a motion to dismiss the proceedings in error. One ■ of the grounds for such motion is that the record contains no bill of exceptions. Rule 13 of this court provides: “Nothing which could have been properly assigned as a ground for a new trial in the court below will be considered in this court, unless it shall appear that the cause was properly presented [77] to the court below by a motion for a new trial, and that such motion was overruled and exception was at the time reserved to such ruling; all of which shall be embraced in the bill of exceptions.” Assuming that the record on appeal in case No. 998 can be considered in this case, neither that record nor the record in this case contains any bill of exceptions. The rulings of the trial court here complained of relate to the rulings on divers motions, and that the findings of the trial court are against the law and the evidence. “It is well settled that motions are not in the record on proceedings in error, unless embraced in a bill. ” (Harden v. Card, 14 Wyo. 479, 85 Pac. 246; Bank of Chadron v. Anderson, 7 Wyo. 441; 53 Pac. 280); and when it is contended that the findings are against the law or the evidence the exceptions must be reduced to writing and presented to the court or judge for allowance. Sec. 4598, Comp. St. 1910. No brief in resistance of the motion to dismiss the proceedings in error has been filed by counsel for plaintiff in error, and we do not understand them to claim that a bill is not necessary in this case. Indeed they seem to have abandoned this proceeding as they state in their brief resisting the motion to dismiss the appeal .in No. 998 that, ‘ ‘ The appellant is seeking to have the action of the trial court reversed not on error, but by trial de novo on direct appeal, as provided by the new law relating to that method of review. ’ ’ Counsel seem to entertain the erroneous impression that under Chapter 32, S. L. 1917, they can have a trial de novo in this court. While a party may bring the cause to this court by either of the two methods at his election, if he has preserved the proper record, he cannot maintain both at the same time. And whether or not this proceeding is to be regarded as abandoned, it is clear that in the absence of a bill of exceptions there is nothing for this court to consider, and the motion to dismiss the proceedings in error will have to be granted; and it is so ordered. Appeal, and Proceedings in Error dismissed. Potter, J., and Tidball, Y. J., District Judge, concur. [78] Blydenburgh, J., being unable to sit in these cases, Hon. V. J. Tidball, Judge of the Second Judicial District, was called in as a member of the court and sat in his stead.