Opinion
No. 2071
May 25, 1938
APPEAL AND ERROR — COURTS — VALIDITY OF COURT RULE 35 — FEE FOR FILING APPEAL RECORD — TIME FOR FILING RECORD — STATUTES — DISMISSAL.
1. The record on appeal is considered as having been filed in Supreme Court on date of clerk's receipt of filing fee, not date on which he received record, so as to require dismissal of appeal, where such fee was received over 60 days after filing of record in district court (Supreme Court Rule 35). 2. The Supreme Court rule requiring that record on appeal be filed in clerk's office within 60 days after filing thereof in district court clerk's office merely interprets and applies statute, requiring latter clerk to transmit record to Supreme Court clerk if district court grants no new trial within 20 days after filing of specifications of error, and is authorized by statute providing that Supreme Court may prescribe rules of practice therefor not inconsistent with state constitution or laws (Rev. St. 1931, §§ 31-107, 89-4910; Supreme Court Rule 35). 3. Courts have power to fix time within which appeal may be taken, particularly in absence of provision therefor in statute. 4. The fact that appellant was poor man, unable to pay fee for filing record in Supreme Court within 60 days allowed by rule thereof after filing of record in district court, was not valid excuse for delay, where judgment appealed from was entered over four months before receipt of such fee by Supreme Court clerk (Supreme Court Rule 35).
APPEAL from the District Court, Sheridan County; HARRY P. ILSLEY, Judge.
In support of the Motion to Dismiss appeal, there was a brief by Maurice L. Cone, H. Glenn Kinsley and Louis J. O'Marr, all of Sheridan.
The case is governed by the decision in Porter, et al. v. Carstensen, 44 Wyo. 49, 8 P.2d 446. The decision in Samuelson v. Tribune Publishing Company, 41 Wyo. 87 also sustains the provisions of Supreme Court Rule 35. The legislature has power to control appellate procedure. Article 5, Section 18, State Constitution. The Supreme Court has power to prescribe rules of practice not inconsistent with the constitution or laws of the state, and such rules have the force of legislative enactments. Section 31-107, R.S. 1931. It has been held in numerous cases that appellate courts have such power, even in the absence of statute. 15 C.J. 910, 911. Supreme Court Rule 35 does not usurp any power or authority of the district court. The affidavit filed in resistance of the motion to dismiss does not show that any effort was made by counsel in the matter to obtain the filing fee within the required time. The motion should have been sustained.
In resistance to the motion to dismiss the appeal, there was a brief by R.G. Diefenderfer and John F. Raper of Sheridan.
Supreme Court Rule 35 is void, because the Supreme Court was without authority to adopt it. The rule is only directory, and a dismissal of the appeal would result in a denial of justice. The power of the Supreme Court to prescribe rules is derived from Section 31-107, R.S. This statute was cited in Dean v. Oil Company, 21 Wyo. 133, which related to another rule of the court. The Constitution restricts the power of the Supreme Court as to its general jurisdiction by such rules and regulations as may be prescribed by law. Article 5, Section 18, Constitution. This clearly means rules prescribed by the legislature and not by the courts. There is no requirement in the statutes that a record on appeal must be filed within any stated period. We therefore contend that such record may be filed at any time, subject however to the rule of due diligence on the part of the appellant. Sec. 89-4911, R.S. provides that the Supreme Court shall not acquire jurisdiction until the record on appeal is filed with the clerk of said court. This court held in Genero v. Roach, 39 Wyo. 40, that the District Court retains jurisdiction until the record on appeal is filed in the Supreme Court. Through the adoption of Rule 35, the Supreme Court exceeded the power granted it by Section 31-107, R.S. 1931, and by this rule attempts to control procedure solely under the jurisdiction of the district court. Rules adopted by the Supreme Court have no application to the practice in law courts. Railroad Company v. Kirk (Miss.) 58 So. 710; Posvar v. Royce, 37 Wyo. 34. The petition in error was not filed within the one year period required by Section 6384 of Wyo. Comp. Stat. 1920, now Section 89-4816, R.S. 1936. No rule of court was involved in that case. The case of In re Contas, 42 Wyo. 59 and In re Sikora, 42 Wyo. 60 were decided under the Workmen's Compensation Statute, which at that time allowed only thirty days from entry of the order below for the filing of the record on appeal. If the court decides that it does possess the authority to regulate direct appeal procedure, prior to the time when it acquires jurisdiction, still we urge that in the present case it should deny the Motion to Dismiss. The sixty day period fixed by Rule 35 expired on January 26, 1938, and the fee was obtained by attorneys for appellant on January 27, 1938, and forwarded to the clerk by air mail on January 28, 1938. It was received by him on January 29, 1938, at which time he filed the record. The delay in obtaining and forwarding the money was due to poverty on the part of appellant. It seems clear that Rule 35 is not mandatory. At most, this case is only "subject to dismissal," which leaves the matter within the discretion of the court. It would seem to be an abuse of discretion for this court to refuse a hearing to appellant. He is a poor man and the effect of a dismissal would be that every door to relief in this cause would thereby be forever closed to him. A full year is allowed by statute for the commencement of proceedings in error as a matter of right, yet under the direct appeal statute and Rule 35, the appellant may take only 160 days from the entry of judgment in the lower court. It does not seem that the difference in the time allowed under the respective methods of procedure should be considered with the other circumstances, to the end that justice shall not be denied appellant, because of a purely technical objection not based upon a mandatory requirement.
This case is pending on a motion to dismiss the appeal, on account of the record on appeal not having been filed in this court within the time prescribed by Rule 35 of this court, which provides: "A case brought by direct appeal to the Supreme Court shall be subject to dismissal if the record on appeal shall not have been filed in the office of the clerk of the Supreme Court within sixty days after such record shall have been filed in the office of the clerk of the district court as required by law." The record on appeal in this case was filed in the office of the clerk of the district court of Sheridan County, Wyoming, on November 27, 1937. It was received by the clerk of this court on January 10, 1938, but the fee of $15 for filing it was not received until January 29, 1938. The latter date, accordingly, is the date on which the record on appeal is considered as having been filed in this court. Posvar v. Royce, Sheriff, 37 Wyo. 34, 258 P. 587. That was more than sixty days after it had been filed in the district court. We have several times dismissed appeals for violating Rule 35. In re Federal Lands Emergency Construction Project, etc., 50 Wyo. 41, 57 P.2d 684; Samuel v. Christensen-Garing, 47 Wyo. 331, 37 P.2d 680; Porter v. Carstensen, 44 Wyo. 49, 8 P.2d 446. It is claimed by counsel for appellant that the rule is void. They contend that the statute makes no provision as to when a record on appeal shall be filed, and that the court has no power to fix the time. Counsel are in error. Section 89-4910, R.S. 1931, provides that if no "new trial is granted by the district court within the period of twenty days from the date on which the specifications of error are filed with the clerk of the district court, said clerk shall thereupon transmit to the clerk of the supreme court the record on appeal and the specifications of error." Prior to the adoption of the rule above mentioned the court was continually confronted with the question as to the time thus fixed by the statute. We held in Samuelson v. Tribune Publishing Company, 41 Wyo. 487, 287 P. 83, that the statute contemplates that the record on appeal shall be transmitted "forthwith" after the expiration of the twenty days above menioned. To make the time specific, so that no one might err, we thereafter adopted Rule 35, effective January 1, 1931. The rule merely interprets, and applies the statute above mentioned. Instead of determining each time as to when is the proper time within the contemplation of the statute, the court has fixed the time once and for all. We think that the rule is fully authorized by Section 31-107, R.S. 1931, which provides:
"The Supreme Court may prescribe rules of practice for said court, not inconsistent with the constitution or laws of this state, and when such rules are adopted by the court, the same shall be binding upon the court and the attorneys thereof, and the parties having business therein, as though the same were enactments of the legislature of the state."
The validity of the rule is sustained by a number of authorities. Nudd v. Fuller, 150 Wn. 389, 273 P. 200; Ernst v. Lamb, 73 Colo. 132, 213 P. 994; Swann v. State, 153 Md. 700, 138 A. 329; Johnson v. Superior Court, 79 Cal.App. 650, 250 P. 686; Sullivan v. Pierce, (CCA) 186 Fed. 783; 7 R.C.L. 1025. It has generally been recognized that courts have power, particularly in the absence of a provision in the statute, to provide for the time in which an appeal may be taken. In 4 C.J.S. 484, Sec. 478, it is said:
"Appeals or other proceedings for review must be prayed, taken or perfected within such time as may be fixed therefor by governing rules of court or, as is more frequently the case, statutes."
In Nudd v. Fuller, supra, the court said:
"While it is true that the right of appeal is a substantive right and one which cannot be taken away by the rule-making power of the court, yet clearly the time within which an appeal may be taken and the method to be pursued and the steps to be taken in perfecting an appeal are purely questions of procedure and come within the purview of our statute."
Counsel for appellant further urge that if the rule is valid it should be construed liberally; that in this case the appellant is poor, and should be excused. They filed an affidavit stating that "appellant is a poor man and was unable to provide said fee to these affiants until January 27, 1938," and that thereupon the money was immediately transmitted to the clerk of this court. But counsel must be aware that in defining the statutory time of "forthwith" at sixty days after the filing of the record in the district court, the court was liberal. And it was liberal for the express purpose of avoiding the situation with which we were confronted prior to the adoption of the rule. See Porter v. Carstensen, supra. The granting of requests such as now made would make the rule worthless. The judgment in this case was entered on September 9, 1937. Appellant, accordingly, had more than four months during which to raise the $15.00. We think that we cannot accept the explanation as a valid excuse. The motion to dismiss will accordingly be sustained.
Motion Sustained.