Posvar v. Royce, Sheriff

This action was instituted by George W.K. Posvar, as plaintiff, and plaintiff in error here, against the defendants, defendants in error here, on March 3, 1923. After certain proceedings were had in the court below, a judgment was entered there on September 2, 1925, dismissing the action, and reciting that the order was entered pursuant to a previous order of dismissal made on October 13, 1924, but not formally entered of record. The petition in error herein is predicated, according to the statements in the 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 the record, though that contains a motion filed March 9, 1926, in which the plaintiff asked that the cause be set down for trial before some judge other than the judge of the Eighth Judicial District. Defendants in error have filed a motion to dismiss the proceeding in error herein on the ground that it was not commenced within one year after the making and rendition of the order of which complaint is made. The petition in error was actually filed herein on March 26, 1927. The motion to dismiss is resisted on the ground that the petition in error was received by the 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. The fee was not paid until March 26, 1927, and the petition in error was not filed until that date. Plaintiff in error claims that he sent the docket fee along with the petition in error, but he must be mistaken, since the facts are that it was not sent on February 26, 1926, and was not received till March 26, 1927. The payment of the fee was a prerequisite to the actual filing of the petition in error. 3 C.J. 1103, and rule 7 aforesaid. The proceeding in error was, accordingly, commenced more than a year after the rendition of the order complained of, the statutory period of limitation, and the 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 P. 799; Boner v. Fall River County Bank, 25 Wyo. 260, 168 P. 726.