Hayes v. Nielson , 1977 Wyo. LEXIS 328 ( 1977 )

568 P.2d 905 (1977)

Norman J. HAYES, Appellant,
v.
Glenn W. NIELSON, James E. Nielson, and Kenneth M. Woolley, Appellees.

No. 4829.

Supreme Court of Wyoming.

September 8, 1977.

Michael H. McCarty, McCarty & Bormuth, Cody, Thomas C. Toner, Lawrence A. Yonkee, Sheridan, for appellant.

Charles G. Kepler, Simpson, Kepler & Simpson, Cody, Arthur H. Nielsen, Nielsen, Conder, Henriod & Gottfredson, Salt Lake City, Utah, William P. Rohrbach, Cody, for appellees.

ORDER DISMISSING APPEAL

PER CURIAM:

This case came on before this Court upon the Motion to Dismiss Appeal, filed herein by Appellees, Glenn W. Nielson, James E. Nielson, and Kenneth M. Woolley, with respect to the question of the jurisdiction of this Court to proceed with the hearing and disposition of this case on the merits of the appeal; and the Court having examined the record on appeal and having considered the memoranda of the respective parties; and it appearing from the record on appeal and the applicable law as follows:

On September 7, 1976 Appellant, Norman J. Hayes, filed in the District Court a Second Amended Complaint in which there was asserted a First Cause of Action naming as defendants only Glenn W. Nielson, James E. Nielson, and Kenneth M. Woolley. This was a separate cause of action from other asserted causes of action in the Second Amended Complaint, and it was the only cause of action in which Kenneth M. Woolley was named as a defendant.

On February 7, 1977 these three defendants filed a Defendants' Motion for Partial Summary Judgment on the First Cause of Action of the Second Amended Complaint. On March 22, 1977 an Order was entered granting this motion for partial summary judgment. On April 15, 1977 the Appellant filed a Notice of Appeal to the Supreme Court designating, albeit inartfully, the Order entered March 22, 1977.

The case subsequently was tried to a jury, and on May 5, 1977 the Judgment based upon the verdict of the jury was entered. On May 26, 1977 Appellant filed the Notice of Appeal attached to this Order as an Appendix.

No appeal will lie from an order granting a partial summary judgment because such an order is not a final order under Rule 54(b), W.R.C.P. Ambariantz v. Cunningham, Wyo., 460 P.2d 216 (1969), and Reeves v. Harris, Wyo., 380 P.2d 769 (1963). See Olmstead v. Cattle, Inc., Wyo., 541 P.2d 49 (1975), and cases cited therein. The Notice of Appeal to the Supreme Court filed on April 15, 1977, therefore was premature and ineffective. Financial Management Corp. v. Wyoming Electric Sign Co., Wyo., 561 P.2d 237 (1977), and cases cited therein.

In the Notice of Appeal filed May 26, 1977 Appellant specifically designated certain parts of the Judgment entered May 5, 1977 which he appealed from in accordance with Rule 73(b), W.R.C.P. No mention was made of the Order granting the partial summary judgment entered March 22, 1977, nor was it referred to in any way. Although the Order granting the partial summary judgment became final and appealable upon entry of the Judgment on May 5, 1977, the Notice of Appeal filed May 26, 1977 was not sufficient to present any claim of error arising out of the Order granting the partial summary judgment. Miles v. Deisch, 228 Ark. 803, 310 S.W.2d 505 (1958); Welch v. State, 80 Nev. 128, 390 P.2d 35 (1964); Mabrey v. Mobil Oil Corp., 84 N.M. 272, 502 P.2d 297 (N.M.App. 1972); and

IT IS THEREFORE ORDERED that the appeal from the Order granting the partial summary judgment, No. 4829 in this Court, be, and it hereby is, dismissed because of lack of jurisdiction in this Court.

Appendix to follow.

APPENDIX IN THE DISTRICT COURT OF PARK COUNTY STATE OF WYOMING - NORMAN J. HAYES, | | Plaintiff, | | - vs - | | GLENN E. NIELSON, OLIVE W. NIELSON, | THE NIELSON TRUST, MARGARET RUTH | BULLOCK, JAMES E. NIELSON, JOANNE N. | LIVINGSTON, ANNA MARIE HALES, and | Filed 5-26-77 GLENN WILLIAM NIELSON, partners, associated > /s/ Lorraine S. Christler under the common name and style of | Clerk NIELSON OIL AND GAS, a Wyoming partnership; | GEN OIL INC., a Wyoming corporation; | NIELSON ENTERPRISES, INC., a Delaware | corporation; and Y-TEX CORPORATION, a | Texas corporation, and KENNETH M. WOOLLEY, | | Defendants. | Civil Action No. 9593 -

NOTICE OF APPEAL

Notice is hereby given that Norman J. Hayes, Plaintiff above named, hereby appeals to the Supreme Court of the State of Wyoming from a final judgment entered on May 5, 1977. Appeal is taken from those parts of the judgment relating to damages recoverable by Plaintiff and from those parts of the judgment relating to the price Plaintiff receives for 390 shares of Y-Tex Corporation stock. The Plaintiff does not appeal from that part of the judgment finding that Plaintiff was wrongfully terminated from Y-Tex Corporation and that Plaintiff was injured thereby. An appeal is not taken from the part of the judgment that Y-Tex Corporation is entitled to an offset in the sum of $7,187.41 and for return of a Nikkon camera and other personal property. Appeal is not taken from the judgment in favor of Plaintiff and against the Defendant Y-Tex Corporation on Count III of Defendant Y-Tex Corporation's counterclaim against Plaintiff. Appeal is not taken from the judgment in favor of Plaintiff and against Defendant Y-Tex Corporation on Count IV of Defendant Y-Tex Corporation's counterclaim.

Dated: May 24, 1977. COUNSEL FOR PLAINTIFF: REDLE, YONKEE & ARNEY P.O. Box 6288 Sheridan, Wyoming 82801 McCARTY and BORMUTH P.O. Box 589 Cody, Wyoming 82414 BY Lawrence A. Yonkee Of Redle, Yonkee & Arney

CERTIFICATE

I certify that Appellant has ordered from C. Gene Klingler and arranged for the payment of a transcript of the evidence. This certification is made to comply with the requirements of Rule 73(a) of the Wyoming Rules of Civil Procedure.

(s) Lawrence A. Yonkee Of Redle, Yonkee & Arney

CERTIFICATE OF SERVICE

I certify that at Sheridan, Wyoming, on May 24, 1977, I served a copy of the within Notice of Appeal upon Defendants by depositing the same in the U.S. Mail, duly enveloped with postage prepaid thereon and addressed to Simpson, Kepler and Simpson, Attorneys at Law, Shoshone First National Bank Building, Cody, Wyoming 82414.

(s) Lawrence A. Yonkee Of Redle, Yonkee & Arney