Fertile Valley Canal Co. v. Kearney , 37 Wyo. 475 ( 1928 )

In each of these cases the respondent has filed a motion to dismiss the appeal on the ground that the notice of appeal was premature. The facts on the questions raised by the motions are the same in the two cases. We speak of one case, but our remarks apply to both.

The record on appeal in case No. 1461 contains a copy of the judgment concluding thus: "Done in open court this 13 day of April, A.D. 1927. P.W. Metz, Judge." Following the copy of the judgment is this statement: "Entered in District Court Journal, Book 4, Pages 128-129 on May 2, 1927." Then follows a certificate whereby the clerk certifies "the foregoing to be a true and complete copy of all the Journal entries" in the case "same appearing in Book 4, District Court Journal, Pages 128-129." This is the only certified copy of the judgment, and seems to be the only thing in the record to show the date of the entry of the judgment. If the judgment was not entered until May 2, the notice of appeal which was served April 14, and filed April 19, was both served and filed prematurely. Hahn v. Citizens State Bank, 25 Wyo. 467,171 P. 889, 172 P. 705; Culbertson v. Ainsworth, 26 Wyo. 214,181 P. 418.

On the argument of the motion to dismiss, counsel for appellant suggested that he be given leave to have the record amended to save the appeal if that seemed possible. We do not believe any such amendment could be made. The only amendment that would save the appeal would be one showing that the judgment was entered on or before April 14. The notice of appeal must be both served and filed after the entry of the judgment. Culbertson v. Ainsworth, supra. The record contains, in addition to the certified copy of the judgment, another copy which apparently is the original paper signed by the judge and filed with the clerk. This paper, which, under our previous decisions, was not the judgment, but the form for the clerk to follow in entering the judgment, was filed with the clerk April 15, 1927, and the judgment could not have been entered until that date.

Appeals dismissed.