Posvar v. Royce, Sheriff

258 P. 587, 37 Wyo. 34, 1927 Wyo. LEXIS 65

• Court: Wyoming Supreme Court
• Decided: August 16, 1927
• Docket: 1441
• Status: Published

Opinion

Per Curiam

This action was instituted by George "W. K. Posvar, as plaintiff, and plaintiff in error bere, against tbe defendants, defendants in error bere, on March 3, 1923. After certain proceedings were bad in tbe court below, a judgment was entered there on September 2, 1925, dismissing tbe action, and reciting that tbe order was entered pursuant to a previous order of dismissal made on October 13, 1924, but not formally entered of record. Tbe petition in error herein is predicated, according to tbe statements in tbe petition, upon an order and judgment of the District Court made February 27, 1926, entered March 2, 1926. This order purports to overrule a motion filed in said cause to vacate said order of September 2, 1925. This motion is not in tbe record, though that contains a motion filed March 9, 1926, in which tbe plaintiff asked that tbe cause be set down for trial before some judge other than tbe judge of tbe Eighth Judicial District. Defendants in error have filed a motion to dismiss tbe proceeding in error herein on tbe ground that it was not commenced within one year after tbe making and rendition of tbe order of which complaint is made. Tbe petition in error was actually filed herein on March 26, 1927. Tbe motion to dismiss is resisted on tbe ground that tbe petition in error was received by tbe clerk of this court on February 26, 1927. But it was not accompanied by any docket fee, as prescribed by rule 7 of this court. Tbe fee was not paid until March 26, 1927, and tbe petition in error was not filed until that date. Plaintiff in error claims that be sent tbe docket fee along with tbe petition in error, but be must be mistaken, since tbe facts are that it was not sent on February 26,1926, and was not received till March 26, 1927. Tbe payment of tbe fee was a prerequisite to tbe actual filing oí tbe petition in error. 3 C. J. 1103, and rule 7 aforesaid. Tbe proceeding in error was, accordingly, commenced more tban a year after tbe rendition of tbe order complained of, tbe statutory period of limitation, and tbe motion to dismiss must, therefore, be sustained. Section 6384, W. C. S. 1920; W. Sheep Company v. Pipe Dome Oil Company, 33 Wyo. 61; 228 Pac. 799; Boner v. Fall River County Bank, 25 Wyo. 260, 168 Pac. 726.