Frontier Fibreglass Industries, Inc. v. City of Cheyenne

GRAY, Justice

(dissenting).

I am constrained to dissent from the result reached by the majority in this appeal and from the reasons assigned for reaching such a result. I will as briefly as possible point out the reasons for my disagreement, but first by way of general observation it is apparently conceded that we are dealing only with two claimed irregularities in the city’s procedure.

With respect to service of the amended complaint, the holding, as I view it, sacrifices substance for form, contrary to the purpose of our rules. Rosden v. Leuthold, 107 U.S.App.D.C. 89, 274 F.2d 747, 750. The objective of Rule 5, W.R.C.P., as related to this proceeding is to assure that a party litigant, after the court has acquired jurisdiction over its person, receives notice which in the nature of things will call attention to the affected party of developments in the case. Here the record conclusively establishes that the defendant Linde was president of the corporation. It is unquestioned that Linde was served with the amendment which, by the way, injected no new basis for the -city’s claim against the corporation and

thus the appropriate query is what knowledge the corporation acquired of the filing and contents of the amendment. On the record before us it must be held to have known that the trial court had granted the city the right without limitation to amend its complaint; to have known the contents of the amendment; and to have known that the case would be tried on July 20, 1966. Notwithstanding this, both Linde and' the corporation chose to stay away from the trial; and so far as I am concerned they stayed away at their peril. Boulter v. Cook, 32 Wyo. 461, 234 P. 1101, 1104, rehearing denied 236 P. 245; Rim Group v. Mountain Mesa Uranium Corporation, 78 Wyo. 204, 321 P.2d 229, 230, rehearing denied 323 P.2d 939. Also, I would further point out that during the period from October 29, 1965, when the corporation’s counsel withdrew from the case, until January 17, 1967, it was without counsel of record, and during that period of time no effort was made by the corporation to advise the city or the court upon whom notice of developments in the proceedings was to be served. Secondly, even if the service of the amendment was defective because the certificate failed to state it was served on Linde as an individual and as president of the corporation, the defect was waived when the corporation, without preserving the objection, entered an appearance by its present counsel in the proceedings had on January 17, 1967. Lastly, such contention is not property before us for the reason that it was never raised in the court below.

Concerning the matter of pretrial, it likewise is predicated upon the proposition that “notice of the pretrial was served upon Arthur Linde, only.” That, of course, overlooks the provision of Rule 77(d), W.R.C.P., which requires the clerk of court to mail a copy thereof to all parties not in default. There was no showing by the corporation that the clerk did not perform his duty in that respect, and consequently it must be assumed that the corporation received notice of the pretrial. hearing. Rim Group v. Mountain Mesa Uranium Corporation supra. And, in any event, it seems to me it is rather a broad assumption to say that Linde as president of the corporation and as a layman would understand and grasp the significance of the language of the pretrial order, which to me and apparently to the trial court was not as restrictive as the majority holds inasmuch as the city’s pretrial memorandum made reference to the corporation’s possession of the leasehold, which, of course, pertained to the “second count”; but if he did then the corporation was charged with knowledge that the pretrial order, as the majority holds, was subject to amendment at the trial, which the corporation was also notified would be held on July 20, 1966, and I reiterate that the corporation stayed away from that trial at its peril. Furthermore, the contention was never raised in the trial court and thus is hot properly before us.

By way of summarizing the circumstances in this case as clearly disclosed by the record and as bearing upon the conduct of the corporation, I emphasize the fact that the corporation ignored the trial court’s order to appear at the pretrial conference; it purposely failed to attend the trial of the case on July 20, 1966; on January 17, 1967, it again entered a general appearance in the proceeding; it was not then asserted that it was prejudiced by the language of the pretrial order; no objection was ever raised to the claimed defective service of the amended complaint; leave was not sought to file an answer to the amended complaint; it was not suggested to the trial court that the corporation had a defense to the claim advanced by the city; and it requested no continuance of the proceedings had on January 17, 1967, for any purpose.

All of this indicates to me that the corporation was simply trifling with the trial court, and I cannot see where the ends of justice require that this court on its own overlook the machinations of the corporation and grant to it relief which was never requested from the trial court. The circumstance to me makes appropriate another pronouncement made in the case cited by the majority as general authority for the position taken on service of the amendment, Timmons v. United States, 4 Cir., 194 F.2d 357, 361, to the effect:

“It would be an intolerable obstraction to the administration of justice if a party should be permitted to remain silent or absent himself during the trial of a case and subsequently, after judgment had gone against him, to question for the first time the regularity of the proceedings. Especially is this true when, as in the instant case, the effort to strike out the judgment is based entirely on procedural irregularity and no defense on the merits of the case is offered. * * * ”

Reverting to the proposed disposition of the case, I would agree that the trial court could not by the nunc pro tunc order relate the judgment entered against the corporation back to July 20, 1966, for the reason that no judgment against the corporation had theretofore been announced or entered. The effort so to do, however, does not in my opinion void tire judgment. The designation of the judgment as one entered nunc pro tunc can be disregarded as a misnomer, Arnold v. State, 76 Wyo. 445, 306 P.2d 368, 374, 65 A.L.R.2d 839, and the order and judgment appealed from treated simply as the entry of a judgment against the corporation based upon the trial court’s findings and conclusions drawn from its recollection of the evidence produced by the city at the trial of the case. Absent the record of that trial, the trial court’s recollection of the evidence is conclusive, Holmes v. Holmes, 66 Wyo. 317, 211 P.2d 946, 951, and it must be assumed that there was substantial evidence to support the trial court’s findings and conclusions. I would modify the judgment by eliminating the language attempting to make it effective on July 20, 1966, and as so modified I would affirm.