Big Bend Drainage District Chicago & Northwestern Railway Co. v. Big Bend Drainage District

Kimball, Justice. In a proceeding for the organization of the Big Bend Drainage District the Chicago & Northwestern Railway Company filed objections to the confirmation of the final report of the commissioners. The hearing upon the issues thus raised was concluded in the trial court July 28, 1921, when the judge announced in open court that he would overrule the objections and confirm the report, but the order to that effect, though dated July 28, was not signed by the judge until August 20, and not filed and entered until August 22. The railway company, appealing from that order, brought the case here under the so-called direct appeal statute. The record on appeal disclosing that the notice of appeal was served and filed July 28, and that the order appealed from was entered August 22, the motion of the respondent to dismiss the appeal on the ground that the notice was premature was sustained without opinion on October 25. On November 12, after the return of the record to the district court, on motion of the railway company, the order entered August 22 was vacated and “re-rendered” as of November 12. All the foregoing proceedings in the District Court were had during the May, 1921, term. Thereafter, on November 17, an order confirming the report of the commissioners, identical, except for its date, with the order previously appealed from, was copied in the journal, and from this, as a final order entered November 17, the railway company has taken the appeal with which we now have to deal. The respondent has moved to dismiss this appeal on the ground that the notice of appeal required by [54] Section 6402, Wyo. C. S. 1920 was not served within ten days from the entry of the order appealed from. It is contended that that order was entered August 22, and no appeal having been taken therefrom by serving and filing such notice, the District Court was without the power thereafter to restore the lost right of appeal by merely vacating the order and entering it as of a later date. In vacating and re-entering the order there was no attempt to disguise the purpose to restore a lost right of appeal. The motion upon which the court acted recited frankly that the time for appealing from the order entered August 22 had expired, and that the railway company would be precluded from appealing unless said order were vacated and a new order rendered. As a ground of said motion it was alleged that on July 28, when the decision was announced, it was agreed in the presence and hearing of the judge that the order to carry out the decision, when prepared and signed, would be entered as of the date July 28. The denial of this agreement made the principal if not the sole issue of fact at the hearing of the motion. We do not think it is necessary to inquire what relief might or should have been granted if this alleged agreement had been made. The court found that there had been no such agreement, and we accept th,e finding as settling that fact. From recitals in the motion it appears that on July 28 the railway company knew that the order in question would not be actually entered until some time later, and there was no claim that the date of actual entry was concealed or misrepresented by any one. However, in acting upon the motion it was recited that: ‘ ‘ The court * * * is of the opinion that there was an opportunity for and may have been a misunderstanding as to the date of the entry of said order, and that the counsel for the railroad company may have misunderstood that the order and judgment would be entered of the 28th day of July, 1921,” and the order was vacated and “re-rendered” as already explained. [55] The effect of this alteration of the record is not to be determined by a consideration of the power of a conrt to vacate or modify its judgments at the term at which they are rendered. The conrt did not undertake to alter the order, but only the date of its entry. And it changed the date of entry not because the order had been previously entered of a wrong date, but only for the purpose of making a new date of entry from which a new period for appeal might be reckoned. The effect of the court’s action, therefore, is to be determined by a consideration of its power to restore a right to appeal. Under the statute cited above, appeals must be taken by serving and filing a notice of appeal within ten days from the entry of the order or judgment appealed from. There is no statutory authority for extending this time, or for granting relief to a party who has failed to take an appeal within the time. Whethér, in any case, independent of statute, the court has the inherent power to restore a right to appeal after the expiration of the time for serving the notice, need not be determined. Assuming, without deciding, that this power might exist in cases where the failure to give the notice was the result of fraud, accident or mistake, it should not be exercised merely because there has been an opportunity for, and possibility of, a misunderstanding as to the date of the entry of the appealable order. We are of opinion that in this case the period of limitation for appeal ran from August 22, the date of the original entry of the final order appealed from • the appellant having failed to serve a notice of appeal thereafter within the time required by statute, the right to appeal was lost, and the trial court, being without authority to restore the right, could not' accomplish that result indirectly by vacating and re-entering the order. (3 C. J. 1070 and eases there cited. Also; Memphis & C. R. Co. v. Johnson, 16 Lea (Tenn.) 387; Caldwell v. Mayor, 9 Paige (N. Y.) 572.) It is contended that the drainage district is estopped to deny the jurisdiction of this court because it also has appealed from the judgment. However, the appeal of the [56] drainage district is not from the order entered August 22, nor from that order as re-entered November 17, but is from the order of November 12, and apparently for the purpose only of questioning the right of the trial court to vacate and re-enter the order of August 22. We do not think that appeal operates as an estoppel. The appeal is dismissed. Blume, J., and BuRGEss, District Judge, the latter sitting instead of Potter, Ch. J., who is ill, concur.