(22 Wyo. 478) (No. 793.) REYNOLDS v. MORTON. (Supreme Court of Wyoming. Nov. 16, 1914.) 1. APPEAL AND ERROR (§ 773*)-DISMISSALWAIVER BY STIPULATION. default. RISDICTION. trial, and that the errors assigned are only such as can be assigned as grounds for a new trial in the court below. [1, 2] The petition in error was filed April 9, 1914. The time for filing brief on behalf Defendant in error, who failed to file any of plaintiff in error therefore expired June 8, motion to dismiss the proceedings in error while 1914. No brief was filed within that time; plaintiff in error was in default in filing his but on July 6, 1914, the attorneys for the rebrief, and who ha stipulated in writing for an extension of the time for filing the brief, spective parties entered into a written stipucould not be permitted to invoke the rule relation extending the time for plaintiff in erquiring briefs to be filed within a certain time, ror to file and serve his brief until August as his written stipulation was a waiver of the 15, 1914, and giving defendant in error his [Ed. Note.-For other cases, see Appeal and full 45 days thereafter to file and serve his Error, Cent. Dig. 88 3104, 3108-3110; Dec. brief. That stipulation was filed July 9, Dig. § 773.*] 1914. No brief was filed on or before August 2. APPEAL AND ERROR (§ 773*)—Briefs-Ju- 15th. By written stipulation of said attorThe failure to file and serve a brief with-neys, bearing no date, but filed August 18, in the time required by the rules of the Supreme 1914, the time for plaintiff in error to file Court is not jurisdictional, and may be waived. and serve his brief was further extended un[Ed. Note.-For other cases, see Appeal and til August 25, and for defendant in error unError, Cent. Dig. §§ 3104, 3108-3110; Dec. til October 10, 1914. Plaintiff in error filed Dig. § 773.*] his brief August 24, 1914, one day before the expiration of the time allowed by the last stipulation. The motion to dismiss was filed September 23, 1914. Had the defendant in error filed his motion to dismiss while plaintiff in error was in default, that is, either between June 8th and July 6th, or between August 15th and August 18th, and had not, by written stipulation, waived such defaults, the motion on the first ground would be properly before the court for consideration. But counsel cannot be permitted to invoke the rule in violation of their written stipulation waiving the default. That the failure to file and serve a brief within the time required by the rule is not jurisdictional and may be waived was held in Union Pacific R. Co. v. Grace, 137 Pac. 881. 3. APPEAL AND ERROR (§ 627*)-DISMISSAL FAILURE TO FILE TRANSCRIPT. Neither under rule of court nor under Comp. St. 1910, § 5114, requiring plaintiff in error to file with his petition in error an application for an order requiring the clerk of the district court to transmit to the Supreme Court all the original papers and a duly authenticated transcript of all such entries of record as he may desire, and requiring the clerk of the district court to comply therewith, is the clerk's failure to do so ground for dismissal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2744-2749, 3126; Dec. Dig. § 627.*] 4. APPEAL AND ERROR (§ 554*)-DISMISSAL BILL OF EXCEPTIONS. The failure to file a bill of exceptions containing a motion for a new trial is not ground for dismissal where, before the hearing thereon, a proper bill of exceptions was filed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2472-2477; Dec. Dig. § 554.*] Error to District Court, Niobrara County; William C. Mentzer, Judge. Action between William Reynolds and John Morton. Judgment for Morton, and Reynolds brings error. denied. Motion to dismiss Allen G. Fisher and William P. Rooney, both of Chadron, for plaintiff in error. Norton & Hagens, of Casper, for defendant in error. BEARD, J. This case is before the court at this time on the motion of defendant in error to dismiss the proceedings in error for the reasons: (1) That plaintiff in error failed to file his brief within the time required by the rules of this court; (2) that he has failed to cause the original papers in the case to be sent up to this court, properly authenticated as required by the rules; (3) that he failed to have sent up a properly authenticated transcript of the journal entries in said cause; (4) that no bill of exceptions has been filed containing a motion for a new [3] The second and third grounds of the motion may be considered together. We find filed on the day the petition in error was among the files in this court an application, filed, for an order on the clerk of the district court requiring him to certify to this court "the following named original papers in said case to wit: Petition, answer, reply, instructions requested and refused, instructions given, motion for new trial, bill of exceptions, and transcript of all journal entries, and also a duly authenticated transcript of the following journal entries and other matters of record in said cause: Order on motion for new trial, order fixing supersedeas, judgment." The order was accordingly issued by the clerk on the same day, and service of the same acknowledged by the clerk of the district court two days later. By section 5114, Comp. Stat. 1910, the plaintiff in error is required to file with his petition in error an application for an order requiring the clerk of the district court to transmit to the Supreme Court all such original papers in the case and a duly authenticated transcript of all such journal entries or other entries of record as he may desire, and as may be nec essary to exhibit the errors complained of; and it is made the duty of the clerk of the district court to forthwith comply with such order. But his failure to do so is not made a ground for dismissing the proceedings in error either by statute or rule of court. There was filed in this court on April 15, 1914, what purports to be the original papers and journal entries called for by the application and order. Whether they are properly authenticated or are sufficient to exhibit the errors complained of we do not think properly presented by the present motion, and do not therefore determine those matters. [4] As to the fourth ground of the motion, there was filed on September 25, 1914, and before the hearing on the motion, what purports to be a bill of exceptions. Deeming none of the grounds of the motion well taken, it is denied. Defendant in error will be allowed 45 days from this date to file and serve his brief. Motion to dismiss denied. failed to establish a right to recover, and we think that appears from a fair reading of the opinion thus criticized. In that opinion, after referring to the previous decision and the ground thereof, we said: "The court is now of the opinion that the question whether the danger was obvious and ated, by the plaintiff. was, upon the evidence, a was appreciated, or should have been appreciquestion of fact for the jury, and was properly submitted to the jury by the trial court.' That statement is followed by a discussion of the evidence, showing a conflict therein as to matters to be considered in determining whether the failure to warn the plaintiff was a proximate cause of his injury, and in concluding that discussion it was said: "The evidence on the question was conflicting, and, as we are now convinced, was properly submitted to the jury." At another place in the opinion it was said: "Several experienced miners having testified that it would require experience to understand and appreciate the danger of the lump of coal falling under the conditions that existed immediately prior to the time that Benedict was injured, or that there was danger of the lump of coal falling after he and his fellow workman had attempted to pry it down with a tamping bar, and it seemed to be solid and the plaintiff having testified that he believed it to be safe, or he would not have returned there to work, although the evidence as to the degree of experience necessary to understand the danger was conflicting, we are convinced that a proper application of the general rule to the facts required a submission of the case to the jury, and that neither the trial court nor this court would be authorized to determine, as a matter of law, that the danger was obvious, and that therefore the failure of the company to properly warn and instruct the defendant in error was not a proximate cause of the injury. It seems to us impossible to say that reasonable minds could not differ upon the question." POTTER, J. Another petition for rehear ing has been filed in this case, this time by counsel for plaintiff in error. We think it unnecessary to again enter upon a discussion of This was said after calling attention to the rules of law applicable to the facts in the general rule as to directing verdict in this case. Upon due consideration of the this class of actions, and that a court is not points made in the brief in support of the authorized to say, as a matter of law, that present application for rehearing, we remain the danger was obvious, unless it is shown satisfied with the conclusion announced upon by the evidence without conflict that an ora rehearing of the cause in the opinion filed dinarily prudent man or one with the exMay 16, 1914, resulting in an affirmance of perience of the injured servant ought to have the judgment. 140 Pac. 1013. Counsel, how-noticed it, and reviewing some of the cases ever, say in their brief now under consider- in which that rule was applied. ation that they are unable to find in said last decision that the court had receded from the position stated in the opinion rendered upon the original hearing that there was a total failure of proof on the part of the plaintiff below to recover. It was not said in the opinion disposing of the case on the first hearing that there was a "total" failure of proof. It was said and held, after discussing the evidence and considering its effect, that the plaintiff had failed to prove that the company's negligence, if any, was the proximate cause of his injury; intending thereby to decide not that there was an entire lack of evidence, but that the evidence was insufficient. It was certainly intended by the later opinion to recede from the position that, as a matter of law, the evidence Counsel quote from the above-quoted statement the words "that therefore the failure of the company to properly warn and instruct the defendant in error was not a proximate cause of the injury," and say that they do not understand what is meant thereby. The meaning is, we think, apparent, viz.: That neither the trial court nor this court would be authorized to determine, as a matter of law, that the failure of the company to properly warn and instruct was not a proximate cause of the injury. No doubt, the thought might have been better expressed. but that is not a ground for rehearing. The points involved in the case have received the most careful consideration by this court, and we do not see that any useful purpose could be subserved by another rehearing. The present application will therefore be Rev. St. 1908, § 2123, was not waived by the dedenied. Rehearing denied. SCOTT, C. J., concurs. BEARD, J. (concurring). I concur in denying a further rehearing in this case, for the reason that, in my opinion, it is doubtful if a second rehearing should be granted in any case. In this case a rehearing was granted, and the questions involved were fully and ably presented, and a majority of the court arrived at a conclusion with which, on a reconsideration of the points on the present application, they are still satisfied. Further argument would unduly protract the litigation. (58 Colo. 154) HARRINGTON v. HARRINGTON. (Supreme Court of Colorado. Nov. 2, 1914.) 1. DIVORCE (§ 184*)-REVIEW BY WRIT of EbBOR-TIME FOR SUING OUT WRIT. Rev. St. 1908, § 2123, authorizes appeals or writs of error to review decrees granting divorces, provided that such writ of error shall be sued out within six months from the date of the decree. Sess. Laws 1911, p. 11, § 6. expressly repeals all statutes granting and regulating "appeals" from the district, county, and juvenile courts, in all actions, suits, and proceedings civil and criminal. Section 8 provides that a writ of error shall not be sued out after three years from the judgment or decree complained of. Section 25 repeals the subdivision of the Code of 1903 (Code Civ. Proc. §§ 419441) relating to appeals and writs of error generally, and all acts and parts of acts inconsistent therewith. Held, that section 2123, so far as it requires writs of error to review decrees of divorce to be sued out within six months, is not repealed by the act of 1911, as the effect of that act was to amend the Civil Code, and it does not amend or repeal statutes controlling proceedings to which the Civil Code does not apply, unless it does so directly, and there is no repugnancy or necessary contradiction between the provision of section 2123 and the pro visions of the act of 1911. [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 570-573; Dec. Dig. § 184.*] 2. STATUTES (§ 159*)-REPEAL-IMPLIED RE fendant in error filing a petition in the Court of Appeals to remand the case to the Supreme Court; the question not being a jurisdictional one waived by a general appearance, but a question of limitation relating to a purely defensive matter and properly raised by a motion to dismiss. [Ed. Note.-For other cases, Cent. Dig. 88 570-573; Dec. Dig. § 184.*] see Divorce, 5. DIVORCE (§ 184*)—DECREE-ENTRY-RELAT ING BACK TO RENDITION. Where, in an action for divorce, judgment complaint, on December 6, 1910, but entry was rendered in favor of defendant on his crossthereof was suspended for ten days, nothing further having been done until May 1, 1911, when the decree was formally entered of record, of the ten days, and the formal entry was purethe judgment became effective at the expiration ly clerical or ministerial, and, whenever done, related back to the date of the actual rendition of the judgment. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 570-573; Dec. Dig. § 184.*] En banc. Error to District Court, Larimer County; James Owen, Judge. Action by Lizzie B. Harrington against Fred M. Harrington. Judgment for defendant, and plaintiff brings error. Writ of error dismissed. L. D. Thomason and F. J. Annis, both of Ft. Collins, for plaintiff in error. Lee & Aylesworth, of Ft. Collins, for defendant in error. BAILEY, J. As plaintiff, Lizzie B. Harrington, plaintiff in error here, brought action for divorce against the defendant, Fred M. Harrington, defendant in error here, in the District Court of Larimer County. October 22nd, 1910, the jury rendered a verdict against her and in favor of defendant, upon cross-complaint. Plaintiff filed a motion for December a new trial, which was denied. 6th, 1910, judgment was rendered on the verdict in favor of defendant, but entry thereof suspended for ten days. Nothing more was done in the case until May 1st, 1911, when the decree of divorce was formally entered of record, and plaintiff prayed and was allowed an appeal to this court. On August 19th, 1911, plaintiff abandoned her appeal to this court, and filed a motion in the court below for an order vacating and annulling the decree entered on May 1st and setting aside the order denying the motion for a new trial, requesting that she be permitted to file additional grounds for a new trial. It appears that defendant remarried in another state before the actual formal entry of the divorce decree in his favor. This alleged bigamous act was relied upon in the motion to reopen and vacate the decree, which was overruled September 5th, 1911. On this day the defendant interposed a motion to have the decree of divorce which was entered of record May 1st, 1911, amended by adding to the last sentence thereof the words: "Done as of December 16, 1910," which was allowed and the amendment made accordingly. Whereupon plaintiff sued out this writ of, they are not included within the plain purport error to review the amended decree. and intent thereof." On March 28th, 1912, the record on error was filed in this court and the writ of error issued. Defendant appeared specially and moved a dismissal of the writ, upon the ground that more than six months had elapsed after the date of entry of the decree before the writ was sued out. May 9th, 1912, this court entered an order overruling the motion to dismiss, without prejudice, however, to the right of defendant to argue such motion at length upon final hearing on the merits. The cause was transferred by this court to the Court of Appeals and remanded on petition of defendant, pursuant to Section 5 of an act entitled Court of Appeals, Session Laws 1911, page 266. [1] The main contention involves a construction of Section 8 of Chapter 6, Session Laws 1911, concerning appeals and writs of error, which reads as follows: "A writ of error shall not be sued out after the expiration of three years from the making or entering of the judgment or decree complained of; but when a person thinking himself aggrieved by any judgment or decree that is the subject of review in the Supreme Court shall be an infant, non compos mentis or imprisoned when the same was so made or entered, the time of such disability shall be excluded from the computation of the said three years." Section 25 of the act repeals all acts and parts of acts inconsistent therewith. The question is whether section 2123, R. S. 1908, providing that a writ of error from any decree granting a divorce shall be sued out within six months from the date of such decree and not after, was thereby repealed. The Code of Civil Procedure enactment of 1887 contained a provision fixing the time at three years in which to sue out a writ of error. This general provision remained intact for six years. Its vice was soon detected when applied to proceedings in divorce, and consequently the legislature, in 1893, limited the time for suing out the writ in such cases to six months. This provision is Section 2123, supra. The act of 1911 expressly repealed the entire subdivision of the Code of 1908 entitled Appeals and Writs of Error, which included the provision of 1887 upon that subject. This court, in the case of Denniss v. People, 55 Colo. 120, 133 Pac. 741, considered the purpose and effect of this act, and held that, although its language is, perhaps, broad enough to apply to criminal cases if such was the intention of the legislature, it nevertheless purports to be an amendment to the civil code and does not apply to such cases. The court said: "The foregoing considerations and many others that might be mentioned make it appear plain that it was the intention to gather in one body as much as possible the provisions of the civil code relating to the review of civil causes, amend them where amendment seemed desirable and to make the writ of error the sole method of review. The whole act purports to be an amendment to the civil code without specifically saying so, and while criminal cases may be included within some of the words of the act, If, for the reasons stated, the act does not alter or repeal statutes governing criminal cases, they being governed by special provisions, it is equally true, upon like considerations, that it does not alter or repeal the special provisions relating to divorce proceedings. The primary purpose and effect of the act was to amend the civil code, and it cannot be held to amend or repeal statutes controlling proceedings to which the civil code does not apply, unless it does so directly. Section 6 of the new act expressly repeals "all statutes granting and regulating appeals from district, county and juvenile courts, in all actions, suits and proceedings, both civil and criminal." This indicates that the legislature, in thus specifically abolishing the right of appeal given by Section 2123, supra, in divorce proceedings, intended, by the very fact that it does not refer to the provision of that section relating to writs of error, to permit it to stand undisturbed. Moreover, as the later act expressly repealed the entire subdivision of the Code of 1908 relating to appeals and writs of error and is in purpose and effect limited to amending the civil code, the provision therein that "all acts and parts of acts inconsistent herewith are hereby repealed" must be held to apply only to all acts and parts of acts of the civil code inconsistent with the new act. Section 8 of the act of 1911, supra, is substantially identical in word and line with the provision of 1887 upon the subject of writs of error, as the same appears in the Code of 1908. Nowhere in the act is there any reference made to Section 2123, supra, and if it repealed this section, it did so purely by implication. That such is its effect cannot be conceded, for it would be illogical to so hold in view of the construction already given the act by this court. In other words, since it has been held that the primary purpose and effect of the act of 1911 was to repeal and amend the civil code, it could repeal no provision outside of the Code except by express reference. In Lewis' Sutherland's Statutory Construction these general rules are stated concerning repeals by implication: "If, by fair and reasonable interpretation, acts which are seemingly incompatible or conate in harmony and without absurdity, both tradictory may be enforced and made to operwill be upheld, and the later one will not be regarded as repealing the others by construction passed with deliberation and with a full knowlor intendment. As laws are presumed to be edge of all existing ones on the same subject, it is but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. In the endeavor to harmonize statutes seemingly incompatible, to avoid repeal by implication, a court will reject absurdity as not enacted, and accept with favorable consideration what is reasonable and convenient. The act being silent as to repeal and affirmative, it will not be held to abrogate any prior law which can reasonably and justly operate without antago- [5] The remaining contention of plaintiff in nism. * * It is a reasonable presumption error relates to alleged error committed in that all laws are passed with a knowledge of those already existing, and that the legislature does not intend to repeal a statute without so declaring." Volume 1 (2d Ed.) § 267. Thus it will be observed with what high degree of disfavor repeals by implication are regarded. An application of these rules to the present case can result in no other conclusion than that no repeal of Section 2123, supra, in so far as it relates to writs of error in divorce proceedings, has been ef fected. a [2, 3] Considering the question from standpoint of repugnancy, the terms and necessary operation of the earlier statute can be readily harmonized with those of the later act. Plainly there is no necessary contradiction between the affirmative provision of the divorce act, that a writ of error to review a decree in such proceedings shall be sued out within six months from the date of the decree and not after that time, and of the new act, that writs of error shall not be sued out after three years from the making and entering of the judgment or decree of which complaint is made. There is a general principle, supported by numerous authorities, that a statute without negative words will not repeal existing statutes unless there is an unavoidable repugnancy. 1 Lewis' Sutherland's Statutory Construction. § 258. The language of the provisions under consideration is affirmative. The earlier one treats of writs of error in divorce proceedings and operates in such cases only, while the later treats of writs of error in general and operates in cases where there is no special, inconsistent provision. Courts should be reluctant to sanction the repeal of an existing legislative enactment unless it clearly appears by the terms or operation of the later pronouncement that it was the unmistakable intention of the legislature to accomplish that end, and this is especially true where, as here, the earlier act is founded in experience and grave considerations of public welfare. In cases of this sort the intention of the legislature should prevail over a literal interpre tation. Hogg v. Board of Com'rs of San MIguel County, 141 Pac. 478. [4] It is further contended by plaintiff in error that, in any event, the filing in the Court of Appeals of the petition to remand the case constituted a general appearance, by which the right to invoke the six-month limitation of Section 2123, supra, was waived. This contention is evidently urged upon the erroneous presumption, since the cases cited in support of it so indicate, that the question is a jurisdictional one. Such is not the fact. This statute is one of limitation, affording purely defensive matter, and was properly and in apt time raised by the motion to dismiss. Rudolph v. Rudolph, 50 Colo. 243, 114 Pac. 977. It is suffiamending the decree of divorce. cient to say in this connection that the record affirmatively shows that the judgment or decree of divorce was allowed and rendered on December 6th, 1910, and by its express terms became effective ten days thereafter. The matter of its formal entry was purely clerical or ministerial, and whenever done in conformity with the affirmative showing of the record related back to the date of actual rated, the husband proposed a reconciliation not Where, a husband and wife having sepain good faith, and, on her refusal to live with him again, induced her to execute a deed releasing her interest in their homestead and community property for an inadequate consideration, and immediately thereafter sued her for divorce, and obtaining it, at once ceased contributing to her support, the deed would be set aside. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 242-248; Dec. Dig. § 48.*] 2. HUSBAND AND WIFE (§ 232*)-CONVEYANCE BY WIFE TO HUSBAND-INADEQUATE CONSIDERATION-Burden of Proof. The burden is on a husband to show that a transfer made to him by his wife for an inadequate consideration is made freely, and that the transaction is fair and just. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 844-848, 981; Dec. Dig. § 232.*] Department 2. Appeal from Superior Court, Pierce County; W. O. Chapman, Judge. Action by Minnie R. Yeager against Frank F. Yeager. Judgment for plaintiff, and defendant appeals. Affirmed. L. C. Stevenson and C. M. Phoenix, of Tacoma, for appellant. Frank D. Nash, of Tacoma, for respondent. The re PER CURIAM. The appellant and respondent were formerly husband and wife. They intermarried in Douglas county, Wash., on September 16, 1905. At that time the appellant owned 160 acres of land which he had theretofore acquired under the homestead laws of the United States. spondent prior to the marriage had entered under the homestead act 160 acres of land adjoining that of the appellant, title to which she acquired subsequent to the marriage. The parties lived together on the property until the year 1909, when they exchanged it, with certain personal property, for city property, situated in the city of Tacoma. They |