Appendix — Rupe v. Blake

App. 1

APPENDIX A

VERDICT

(Filed April 11, 1981)

We the Jury:

Find for the plaintiff, Thomas N. Rupe, and against

the defendants, Ruth Blake and Louis Dekmar.

We find that the plaintiff suffered total actual dam-

ages of $60,000.00;

Of that amourt we assess:

$40,000.00 against Ruth Blake,

$20,000.00 against Louis Dekmar,

If you decide against awarding punitive damages,

place an X in the box below.

We do not assess punitive damages. Oo

If you decide to award punitive damages, complete

1 or 2 below, or both.

1. We assess punitive damages against the defendant

Ruth Blake in the amount of $105,000.00.

2. We assess punitive damages against the defendant

Louis Dekmar in the amount of $35,000.00.

/8/ Donald Hughes

Foreman or Forewoman

App. 2

APPENDIX B

IN THE DISTRICT COURT

EIGHTH JUDICIAL DISTRICT

Civil Action No. 8360

State of Woyming ) ss

County of Converse )

THOMAS N. RUPE,

Plaintiff,

vs.

RUTH BLAKE and LOUIS DEKMAR,

Defendants,

JUDGMENT ON JURY VERDICT

(Filed April 27, 1981)

THE ABOVE ENTITLED MATTER having come

on for trial before the Court and a jury of twelve, and

the issues having been tried and the jury having returned

its verdict finding for the Plaintiff and against the De-

fendants ;

NOW, THEREFORE, IT IS ORDERED AND AD-

JUDGED that the Plaintiff, Thomas N. Rupe, recover of

and from the Defendant, Ruth Blake, the sum of Forty

Thousand Dollars ($40,000.00) actual damages, plus One

Hundred Five Thousand Dollars ($105,000.00) punitive

damages, and further, that the Plaintiff, Thomas N. Rupe,

recover of and from the Defendant, Louis Dekmar, the

sum of Twenty Thousand Dollars ($20,000.00) actual dam-

ages, and Thirty-five Thousand Dollars ($35,000.00) puni-

tive damages; such sums being the amount of the verdict

App. 3

awarded by the jury against each Defendant on the tort

claims of the Plaintiff.

IT IS FURTHER ORDERED AND ADJUDGED that

the Plaintiff recover from the Defendant, jointly and sev-

erally, his costs.

Dated this 25th day of April, 1981.

/s/ Paul T. Liamos, Jr.

District Judge

App. 4

APPENDIX C

IN THE SUPREME COURT, STATE OF WYOMING

APRIL TERM, A. D. 1982

September 14, 1982

No. 5576

RUTH BLAKE and LOUIS DEKMAR,

Appellants (Defendants),

vs.

THOMAS N. RUPE,

Appellee (Plaintiff ).

No. 5577

THOMAS N. RUPE,

Appellant (Plaintiff ),

vs.

RUTH BLAKE and LOUIS DEKMAR,

Appellees (Defendants).

Appeal from the District Court of Converse County, the

Honorable Paul T. Liamos, Jr., Judge.

Glenn Parker and Harold IF. Buck, Hirst & Applegate,

Cheyenne, signed the brief on behalf of appellant Blake ;

Mr. Parker appeared in oral argument. James EK. Fitz-

gerald, Cheyenne, and F.. Michael Ludwig, Wood, Ris &

Hames, P. C., Denver, Colorado, signed the brief on behalf

of appellant Dekmar; Mr. Hames appeared in oral argu-

ment.

Raymond B. Hunkins and Eric M. Alden, Jones, Jones,

Vines & Hunkins, Wheatland, signed the brief and ap-

peared in oral argument on behalf of appellee Rupe.

App. 5

David A. Kern, Cheyenne, filed Amicus Curiae brief on

behalf of the Wyoming County and Prosecuting Attorneys

Association in support of the position of appellants Blake

and Dekmar.

Before ROSE, C.J., and RAPER, THOMAS, ROONEY

and BROWN, JJ.

RAPER, J., delivered the opinion of the court. ROONEY,

J., filed a coneurring opinion. THOMAS, J., filed an opin-

ion concurring in part and dissenting in part. ROSE,

C. J., filed a dissenting opinion.

NOTICE: This opinion is subject to formal revision

before publication in Pacific Reporter Second. Readers

are requested to notify the Clerk of the Supreme Court,

Supreme Court Building, Cheyenne, Wyoming 82002, of

any typographical or other formal errors, in order that

corrections may be made before final publication in the

permanent volume.

RAPER, Justice.

The appellee, Thomas N. Rupe, brought a tort action

for damages against appellant Ruth Blake, County and

Prosecuting Attorney for Converse County, alleging tor-

tious conduct in connection with the investigation and

prosecution of a criminal perjury charge brought against

Rupe. In the same action, appellant Louis Dekmar, an

investigator for the office of County and Prosecuting At-

torney for Converse County, was joined and damages

sought against him for alleged tortious conduct in con-

nection with the investigation and filing of the same crim-

inal charge of perjury against Rupe. Following trial by

jury, a verdict was returned awarding Rupe $40,000 ac-

tual and $105,000 punitive damages against Blake and

$20,000 actual and $35,000 punitive damages against Dek-

mar. Judgment was entered accordingly.

App. 6

While many errors by the trial judge are asserted

on appeal, disposition can be made on the issue of the

scope of immunity, possessed by prosecutor Blake and

her investigator Dekmar. The court, at its own sugges-

tion, raised the issue of the timeliness of the notice of

appeal which we will discuss (Part VI) in light of the

dissents filed herein.

We find the notice of appeal to be timely and will

reverse and remand with directions to vacate the judg-

ment in favor of appellee Rupe and enter judgment for

appellants Blake and Dekmar.

I

The facts giving rise to initiation of the tort action

will be briefly narrated. Rupe was called for Converse

County District Court jury duty in 1979. In two

criminal murder cases he, along with other jurors, was

interrogated relative to general qualifications to serve.

“A person is disqualified to act as juror if he has been

convicted of any felony.” Section 1-11-102, W.iS. 1977.

Upon being questioned as to whether any had ever been

convicted of a felony, none responded, including Rupe.'

‘In one case at the start of jury selection the general quali-

fications of the jurors were ascertained. Amongst other statutes

setting out the qualifications, RAE Mt kc was read to the panel.

The district judge requested that anyone convicted of a felony

come to the bench and let him know. No member of the panel

apparently did so. Rupe was asked, “[d]o you know Mr. Roop

[sic] of any reason why you could not serve as a juror?” He

replied, “[n]othing other than | [was] asked to be relieved by

the city engineer,” by whom he was employed.

In the other case, all jurors were advised that a felony con-

viction would disqualify them for service as a juror and then

asked, “[i]s there anyone here that would fall in that category?”

There was a negative response.

App. 7

Rupe sat as a juror in both cases. In one, a verdict of

acquittal was returned. In the other, a mistrial was de-

clared.

Later, Blake learned through a volunteer informant

that Rupe had previously been convicted of a felony—

issuing a fraudulent check. She and Dekmar checked the

Natrona County District Court records, where Rupe’s

trial had taken place in 1950, and at the State Peniten-

tiary to which he had been sentenced and incarcerated.

The evidence is in dispute as to whether Blake or Dek-

mar was informed by penitentiary personnel that Rupe

had been pardoned. During the course of the investiga-

tion no records at the State Capitol in Cheyenne were

checked. The Secretary of State could have furnished a

copy of Rupe’s discharge paper. Blake, upon the basis

of the investigation made, requested that Dekmar file a

perjury complaint against Rupe, which he did on October

11, 1979.

At his justice of the peace appearance for a prelimi-

nary hearing, Rupe presented evidence that when re-

leased from the penitentiary he had been issued a form

of discharge execnted by the then Governor of Wyoming

which concluded with:

“NOW, THEREFORE, By virtue of the authority

vested in me as Governor of the State of Wyoming,

I do hereby direct that the said Thomas N. Rupe,

No. 7061 be discharged from the Penitentiary of the

State of Wyoming, on the Twentieth day of Decem-

ber, 1951 and I do hereby fully restore the said

Thomas N. Rupe, No. 7061 to citizenship, which res-

toration of citizenship shall become effective on said

date.”

App. 8

The form of discharge was, at the time of Rupe’s dis-

charge from the penitentiary, pursuant to then § 19-1004,

W.S. 1945 (afterwards §7-13-107, W.S. 1977)?:

“The Governor of the State of Wyoming shall, upon

receiving a statement of good conduct of a convict,

whose term is about to expire, from the Warden of

the State Penitentiary, immediately issue a certifi-

cate for the discharge of such convict; such certifi-

eate shall in all cases restore the said convict his

rights the same as though full pardon had been

granted. The said certificate to be delivered to the

convict by the Warden of the State Penitentiary at

the expiration of his term.”

Another relevant statute before the justice of the peace

was §6-1-104, W.S. 1977:

“A person sentenced to the penitentiary for a felony,

when sentence has not been reversed or annulled, is

incompetent to be an elector or juror, or to hold any

office of honor, trust or profit within this state, un-

less he shall have received a pardon; but no pardon

shall release a convict from the costs of his convie-

tion, unless so stated therein,’

*Effective May 20, 1981, § 7-13-107, W. S. 1977, was changed

to provide:

“(a) Upon receipt of a written application, the governor

may issue to a person convicted of a felony under the laws

of a state or the United States a certificate which restores

the rights lost pursuant to W. S. 6-1-104 when:

“(i) His term of sentence expires; or

“(ii) He satisfactorily completes a probation period.”

‘a 3Section 6-1-104, W. S. 1977, was changed in 1981 to pro-

vide:

“(a)_ A person convicted of a felony is incompetent to be

an elector or juror, or to hold any office of honor, trust or

profit within this state, unless:

(Continued on next page)

App. 9

The justice of the peace dismissed the complaint.

Other facts will be set out as appropriate.

II

A county and prosecuting attorney in the State of

Wyoming “act[s] as prosecutor for the State of Wyoming

in all felonies and misdemeanors arising in his [her]

county” and prosecutes such cases in the courts of such

county, § 18-3-202, W.S. 1977, in effect at the time the

prosecution involved in this case arose. “ * * * All prose-

cutions shall be carried on in the name and by the au-

thority of the State of Wyoming, and ‘conclude against

the peace and dignity of the State of Wyoming.’” See-

tion 15, Article V, Wyoming Constitution. Blake, as the

duly elected prosecutor, was therefore a proper person

charged with the duty of initiating criminal prosecutions

on behalf of the state of Wyoming. She was therefore

acting within the scope of her duties when she investi-

gated and directed the filing of a complaint against Rupe.

Ill

We are satisfied that the touchstone authority for

the basis of our disposition of this appeal rests in Imbler

v. Pachtman, 424 U.S. 409, 96 8. Ct. 984, 47 L. Ed. 2d 128

(1976). It was there held that a state prosecuting attor-

ney acting within the scope of his duties in initiating and

pursuing a criminal prosecution and in presenting the

(Continued from previous page)

“(i) His conviction is reversed or annulled;

“(ii) He receives a pardon; or

mf His rights are restored pursuant to W, S. 7-13-

App. 10

State’s case is absolutely immune from a civil suit for

damages under 42 U.S, C, §1983* for alleged deprivations

of constitutional rights. The sweep of the opinion spe-

cifically takes in and approves the common-law rule of

absolute immunity for a prosecutor acting within the

scope of his duty.’ In the use of Imbler, we hasten to

mention at this point, that we recognize that the United

States Supreme Court reserved until another time a final

settlement of the extent to which absolute immunity at-

taches to those aspects of the prosecutor’s responsibility

which assign him/her the rule of administrator and in-

vestigator. We will further on in this opinion deal with

a prosecutor's immunity while performing his/her admin-

istrative and investigative functions, since appellee frames

his causes of action around that phase of Blake’s prose-

eution of Rupe, Though the tenor of Rupe’s tort action

in all aspects was that Blake’s prosecution was based in

anger with spiteful motives because one jury with which

442 U.S.C. § 1983:

“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects, or causes to be sub-

jected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an ac-

tion at law, suit in equity, or other proper proceeding for

redress, For the purposes of this section, any Act of Con-

ress applicable exclusively to the District of Columbia

p “ a considered to be a statute of the District of

Columbia,”

‘See Yaselli v. Goff, 275 U.S. 503, 48 S, Ct. 155, 72 L. Ed.

395 (1927) affirming 12 F, 2d 396 (1926), in which the court of

appeals discusses at length the common-law immunity of

judges pus jurors, petit jurors, advocates, and witnesses ap-

proved n Butz v, Economou, infra,

App. 11

Rupe sat acquitted the defendant, Rupe does not allege

malicious prosecution as such,

In the meantime, because of the inseparability of

some investigations by the prosecutor and initiation of

a prosecution, which we discern to be the situation be-

fore us, it is important to point out the reasons for ab-

solute immunity,

“The common-law immunity of a prosecutor is based

upon the same considerations that underlie the com-

mon-law immunities of judges and grand jurors act-

ing within the scope of their duties, These include

concern that harassment by unfounded litigation

would cause a deflection of the prosecutor's energies

from his public duties, and the possibility that he

would shade his decisions instead of exercising the

independence of judgment required by his public

pas One court expressed both considerations as

ollows:

“*The office of public proseeutor is one which

must be administered with courage and independ-

ence, Yet how can this be if the prosecutor is

made subject to suit by those whom he accuses

and fails to convict? ‘To allow this would open

the way for unlimited harassment and embar-

rassment of the most conscientious officials by

those who would profit thereby. There would

be involved in every case the possible conse-

quences of a failure to obtain a conviction, There

would always be a question of possible civil ac-

tion in case the prosecutor saw fit to move dis-

missal of the case, * * * The apprehension of

such consequences would tend toward great un-

easiness and toward weakening the fearless and

impartial policy which should characterize the

administration of this office. The work of the

rosecutor would thus be impeded and we would

ve moved away from the desired objective of

App. 12

atrieter and fairer law enforcement,’ Pearson

v. Reed, 6 Cal, App, 2d 277, 287, 44 P, 2d 592,

597 (1935).” (Footnote omitted.) Imbler v, Pacht-

man, supra, 424 U.S, at 422-424, 96 8, Ct. at

991-992, 47 L. Hd. 2d at 189-140,

As further pointed out in Imbler, without absolute im-

munity the performance of the prosecutor's duties would

be undermined by the constant threat of a suit for dam-

ages, If a prosecutor had to make every move in the

performance of his/her work on the basis of a potential

personal liability, the publie trust in the prosecutor's of-

fice would suffer in that his/her judgment would be col-

ored by such constraints, In the light of the nature of

what is seen as a litigant’s society, such suits could be

expected with some frequency because of resentment by

criminal defendants against prosecutors, Such preoceu-

pation with defending such actions would divert the at-

tention and energy of the prosecutor away from the ur-

gent duty of enforcing the criminal law. Defending every

decision made and action taken could impose intolerable

burdens,

As conceded in Imbler, absolute immunity leaves the

genuinely wronged criminal defendant without civil re-

dress against a malicious or dishonest prosecutor, ‘That

would certainly include the lesser evil of the negligent

prosecutor, It is not the office of this court in this case

to either castigate or defend the Converse County prose-

cutor for the action taken upon the basis of the investi-

gation made. Her unhampered duty to exercise judgment

in the prosecutive decision must not be blurred by con-

cerns and reluctance which would appear in the shadow

of the fear of retaliation. To take away or qualify the

immunity would disserve the broader public interest and

App. 13

prevent vigorous and fearless performance of duty as a

public prosecutor, so essential to the success of the crim-

inal justice system.

The rule of absolute immunity for prosecutors has,

since Imbler been reaffirmed in Butz v. Eeconomou, 438

U.S. 478, 510, 98 S. Ct. 2894, 2912-2913, 57 L. Ed. 2d 895,

918-919 (1978). The court, there quoting Imbler, reiter-

ated that ‘‘‘[t]he common-law immunity of a proseeutor

is based upon the same considerations that underlie the

common-law immunities of judges and grand jurors act-

ing within the scope of their duties.’ 424 U.S., at 422-423,

47 L. Ed. 2d 128, 96 8. Ct. 984.” Further, the prosecutor

is entitled for stated and practical reasons to absolute

immunity. His activities are “activities [which] were in-

timately associated with the judicial phase of the crim-

inal process, and thus were functions to which the rea-

sons for absolute immunity apply with full force.” Imbler,

supra, 424 U.S. at 430, quoted in Butz, supra, 438 U.S.

at 511.

Again, in Supreme Court of Virginia v. Consumers

Union of the United States, 446 U.S. 719, 736, 100 S. Ct.

1967, 1977, 64 L. Ed. 2d 641, 656 (1980), the court in re-

viewing all the situations in which immunity from dam-

age actions existed, declared again that prosecutors enjoy

absolute immunity from damage liability, citing Imbler,

supra. Most recently, we find the rule again upheld in

Harlow v. Fitzgerald, — U.S, —, 102 8, Ct. 2727, — L. Ed.

2d — (decided June 24, 1982), and Nixon v. Fitzgerald,

— U.S. —, 102 8. Ct. 2690, — L, Ed. 2d — (decided June

24, 1982).

App. 14

Wherever we turn, with rare exceptions’, the abso-

lute-immunity rule for prosecutors prevails. Restatement,

Torts 2d §656 provides:

“A public prosecutor acting in his official capacity

is absolutely privileged to initiate, institute, or con-

tinue criminal proceedings.

Comment b. “The privilege stated in this Section is

absolute. It protects the public prosecutor against

inquiry into his motives, and from liability, even

though he knows that he has no probable cause for

the institution of the proceedings and initiates them

for an altogether improper purpose.”

See also, § 895D(1)(2), Restatement, Torts 2d, infra. The

doctrine is solidly established. The ballot and formal re-

moval proceedings are more appropriate ways to enforce

honesty and efficiency of prosecutors. Bauers v. Heisel,

361 F, 2d 581, fn.9 (3rd Cir. 1966), cert. denied 386 U.S.

1021, 87 8. Ct. 1367, 18 L. Ed. 2d 457.

IV

Rupe instituted a civil action against Blake and the

case was eventually tried on his charges of (1) negligence

in hiring and supervising appellant Dekmar, (2) negli-

gence in her investigation of Rupe, (3) intentional inflic-

tion of emotional distress, and (4) violating Rupe’s right

to privacy and the quiet enjoyment of life by publicizing

his prosecution, A count for violation of Rupe’s civil

‘Orso v. City and County of Honolulu, 56 Hawaii 241, 534

P. 2d 489 (1975); Cashen v. Spann, 66 N. J. 541, 334 A, 2d 8

(1975), cert. denied 423 U, S, 829, 96 S, Ct. 48, 46 L. Ed. 2d 46.

App. 15

rights under 42 U.S.C. $1983 was dismissed by the trial

judge at the close of plaintiff’s evidence and did not serve

as a basis of the verdict and judgment.

In response to Blake’s claim of absolute immunity for

prosecutors, appellee argues that the activities which gave

rise to his causes of action were within the administra-

tive and investigative functions of the county and prose-

cuting attorney’s office and therefore not within the im-

munities pronounced by Imbler, supra. The plurality

opinion in Imbler closed with:

“ * * * We have no occasion to consider whether

like or similar reasons require immunity for those

aspects of the prosecutor’s responsibility that cast

him in the role of an administrator or investigative

officer rather than that of advocate.’ * * * ”

By footnote 33 to that statement, it was significantly

said:

“We recognize that the duties of the prosecutor in

his role as advocate for the State involve actions pre-

liminary to the initiation of a prosecution and actions

apart from the courtroom, A prosecuting attorney

is required constantly, in the course of his duty as

such, to make decisions on a wide variety of sensi-

tive issues. ‘These include questions of whether to

present a case to a grand jury, whether to file an

information, whether and when to prosecute, whether

to dismiss an indictment against particular defend-

ants, which witnesses to call, and what other evidence

to present. Preparation, both for the initiation of

the criminal process and for a trial, may requir. the

obtaining, reviewing, and evaluating of evidence. At

some point, and with respect to some decisions, the

prosecutor no doubt functions as an administrator

rather than as an officer of the court. Drawing a

proper line between these functions may present dif-

App. 16

fieult questions, but this case does not require us to

anticipate them.” (Emphasis added.)

It is clear that the office of prosecutor does not alone

give absolute immunity to the prosecutor but the fune-

tion performed governs. We conclude, upon the basis

of further research, that in drawing that line, Blake’s

employment and supervision of Dekmar, her conduct pre-

liminary to initiation of a prosecution of Rupe, and her

conduct during the course of prosecution, came within the

perimeter of the quasi-judicial function and absolute

prosecutorial immunity should be afforded her.

Ever since Imbler, many courts have been in the

process of drawing the outer boundary at which the

prosecutor’s quasi-judicial function ends. The actions of

the prosecutor here were not outside the limits those

courts have found to exist. We will review some of those

cases considered pertinent.

An action had been brought by a witness against a

district attorney and his assistant for slander, conspiracy

to slander, abuse of process, invasion of privacy and

intrusion on seclusion in Sampson v. Rumsey, 1 Kan. App.

2d 191, 563 P. 2d 506 (1977). There the court, upon con-

firming that absolute privilege is founded on publie pol-

icy, extended the immunity to those in public service in

the administration of the laws. While doing so, the court

referred to some of the protected functions involved. It

declared that there was a duty upon prosecutors to in-

quire into the facts of alleged violations of the law. Ac-

cordingly the investigation, as an integral part of the

prosecutor’s functions, is “unquestionably” included with-

in the scope of the immunity regardless of the motives

and it may not be the subject of a lawsuit. The court

App. 17

also held that reference during closing argument to a

witness as a “liar” and a “son of a bitch” was likewise

covered by absolute immunity even if actionable. See

also, Knight v. Neodesha, Kansas Police Department, 5

Kan. App. 2d 472, 620 P. 2d 837 (1980), citing Sampson

as precedent.

In another case, a complaint was filed in a Montana

district court charging and seeking damages against the

prosecutor for acting maliciously, negligently, without

probable cause and in violation of civil rights in charging

the plaintiff with various felonies which were later dis-

missed by the prosecutor. Upon motion based upon im-

munity the district judge of the court in which the civil

complaint was filed had refused to dismiss. By a special

proceeding in the supreme court the Montana Attorney

General sought a ruling that the prosecutor was immune.

In State ex rel. Department of Justice v. District Court

of Eighth Judicial Dist., 172 Mont. 88, 560 P. 2d 1328

(1976), it was held that when a prosecutor acts within

the scope of his duties by filing and maintaining crim-

inal charges he is absolutely immune from civil liability,

regardless of negligence or lack of probable cause. The

court adopted the concept that if a prosecutor must weigh

the possibilities of precipitating tort litigation by his in-

stituting criminal prosecutions, his freedom and indepen-

dence would be at an end. The Montana court granted

original relief because of the danger of substantial preju-

dice which might have resulted forcing the prosecutor

to defend a suit where, as a matter of law, liability can-

not be established.

Where all acts of the district attorney are intrinsic

parts of the prosecutorial function, regardless of motive,

App. 18

to adopt a lax rule would be to turn society over to the

lawless by creating a dread on the part of anyone who

would dare to prosecute. Powell v. Seay, Okl., 553 P. 2d

161 (1976). The court in Powell allowed a writ of pro-

hibition to avoid a burdensome and expensive trial.

The district attorney, in Torres v. Glasgow, 80 N. M.

412, 456 P. 2d 886 (1969), during the course of his in-

vestigation caused issuance of a search warrant for the

search of a house and the seizure of a child, in connec-

tion with a criminal charge of false imprisonment against

the child’s father complained of by the child’s mother.

The court held that, even though habeas corpus would

have been the correct remedy because a child not being

property is not the proper subject of a search warrant,

absolute immunity required dismissal of the damage ac-

tion which followed.

In Candelaria v. Robinson, 93 N. M. 786, 606 P. 2d

196 (1980), an assistant district attorney prepared a re-

port regarding the investigation of a murder case by the

plaintiff law officer at the request of the district attor-

ney. The report of investigation stated that the plain-

tiff used highly improper gestapo-type tactics in the

course of the investigation. The court held that absolute

immunity from a civil suit for damages was accorded to

district attorneys for defamation reasonably related to

communication preliminary to, in the institution, or dur-

ing the course of, and as a part of judicial proceedings

in which the attorney participates as counsel. Even

though the prosecution referred to had been closed, one

of the district attorney’s duties was to advise the sheriff

when requested. The request involved one of the sheriff’s

underlings being considered for termination. The material

App. 19

was released st a press conference. The court held it

proper and within absolute immunity to inform the pub-

lic as a matter of public interest of his official acts where

they were within the scope of his duties. See also, Adams

v. Tatsch, 68 N. M. 446, 362 P. 2d 984 (1961), and Matson

v. Margiotti, 371 Pa. 188, 88 A. 2d 892 (1952), cited in

support. As to the investigative phase, the court pointed

out that it was the county attorney’s duty in a prosecu-

tion to investigate and inquire into the facts.

In Foster v. Pearcy, Ind., 387 N. E. 2d 446 (1979),

cert. denied 445 U.S. 960, 100 S. Ct. 1646, 64 L. Ed. 2d

235, the plaintiff in a defamation suit against a prosecu-

tor and his deputy alleged (1) that he had been indicted

on a narcotics charge which was later dismissed for pro-

cedural reasons; (2) while the indictment was pending,

the prosecutor’s deputy advised a newspaper reporter

that the plaintiff had grossed $18,000 a week from heroin

sales, was part of a nation-wide heroin ring and the in-

dictment was the result of two months investigation; and

(3) the prosecutor was negligent in hiring and supervis-

ing his deputy. The court held:

‘¢ * * * The prosecutor, as an elected law enforce-

ment official, has a duty to inform the public re-

garding cases which are pending in his office. He

must be able to exercise his. best judgment, indepen-

dent of other irrelevant factors, in serving as the

State’s advocate and in communicating such devel-

opments and events to the public. Were a prosecu-

tor granted only a qualified immunity, the threat of

lawsuits against him would undermine the effective-

ness of his office and would prevent the vigorous

and fearless performance of his duty that is essen-

tial to the proper functioning of the criminal justice

system. ‘The public trust of the prosecutor’s office

App. 20

would suffer if he were constrained in making every

decision by the consequences in terms of his own

potential liability in a suit for damages.’ Imbler v.

Pachtman, supra, 424 U.S. at 424-5, 96 S. Ct. at 922,

47 L. Ed. 2d at 140.”

As to the alleged negligent hiring of his deputy, the court

held that it is a well known common-law rule that an offi-

cial who has discretionary functions enjoys immunity for

acts within the scope of his employment and will not be

held liable for errors, mistakes of judgment or unwise

decisions in the exercise of that discretion. The court

held that employment and supervision of his employees

is a discretionary function.

In Kuchenreuther v. Whatcom County, 24 Wash. App.

716, 604 P. 2d 499 (1979), after dismissal of an informa-

tion, the prosecuting attorney was sued for malicious

prosecution and outrage alleging in particular that he:

‘*willfully, wantonly, maliciously, wrongfully, and out-

rageously abused the prosecutorial processes and

acted outside of said process in an improper and

perverted manner to accomplish a result outside the

lawful purposes of legal process.’’ 604 P. 2d at 500.

Summary judgment was held to be proper under prosecu-

tor’s absolute immunity for acts performed in connection

with the prosecution. Iowa likewise grants this broad

absolute immunity to prosecutors. Gartin v. Jefferson

County, Iowa App., 281 N. W. 2d 25 (1979), supreme court

rehearing denied.

We can see, then, that since Imbler the state high

courts have been extending the boundary to a consider-

able extent. The federal courts have done likewise, though

probably not as uniformly as have the state courts.

App. 21

In Atkins v. Lanning, 556 F. 2d 485 (10th Cir. 1977),

the state prosecutor filed felony charges by mistake

against the wrong person. The arrested person sued after

having been held in jail or a mental institution for some

33 days. Citing Imbler, it was held that the prosecutor

had absolute immunity in spite of the misfire. It was

explained by the court that the investigative work done

in preparing and presenting a case by the prosecutor

was a part of the judicial function for which absolute

immunity is granted and that some leeway is needed to

perform the function of assembling the State’s case, in-

cluding a preliminary investigation.

The federal courts must apply a functional analysis

to determine whether the prosecutor’s acts fall within the

bounds of ‘‘judicial’’ as opposed to ‘‘investigative or ad-

ministrative’ duties. Ross v. Meagan, 638 F. 2d 646

(3rd Cir. 1981). This deserves analysis. In the case be-

fore us, the real cause of Rupe’s purported damages was

the filing of the complaint charging him with perjury.

That is a ‘‘judicial” process involving the courts. While

negligence in investigation and other acts of negligence

and misconduct are alleged as a basis for awarding dam-

age, once the criminal complaint is filed, then we must

examine the other acts to determine if they are related

to the prosecutor’s role as an advocate. As held in For-

syth v. Kleindienst, 599 F. 2d 1203 (8rd Cir. 1979), cert.

denied 453 U.S. 913, 101 8. Ct. 3147, a prosecutor is abso-

lutely immune from suit where the allegations of the com-

plaint relate solely to initiating and presenting a crim-

inal case. The court said:

‘6 * * * To grant a prosecuting attorney absolute im-

munity over his decision to initiate a prosecution

App. 22

while subjecting him to liability for securing the in-

formation necessary to make that decision would

only foster uninformed decision making and the po-

tential for needless actions. * * *’’ 599 F. 2d at 1215

In Forsyth it was held that Attorney General Mitchell

would not be absolutely immune from suit unless he au-

thorized a warrantless wiretap in the performance of a

function intimately related to the judicial process. The

record there was not clear as to whether a criminal case

had been initiated, so the circuit court remanded for that

determination by the district court.

In Apton v. Wilson, 165 D.C. App. 22, 506 F. 2d 83

(1974), it was held on summary disposition that the At-

torney General of the United States, his deputy and as-

sistant did not have absolute immunity in directing Dis-

trict of Columbia police investigative activity which led

to innocent plaintiffs being swept up in mass arrests and

deprived of Fourth and Fifth Amendment rights. There

they were acting not as advocate prosecutors but only

within their duties related to a disruption of federal gov-

ernment operations and were entitled only to a qualified

immunity. In Guerro v. Mulhearn, 498 F. 2d 1249 (1st

Cir. 1974), it was held that there could be no summary

disposition on the basis of absolute immunity in the face

of an allegation that the prosecutor conspired with police

officers to use perjured testimony in obtaining a search

warrant. The act there was related to an investigatory

rather than judicial role of the district attorney and en-

titled him to only qualified immunity because, as the

court stated, ‘‘[i]t would be wrong to hold the officers

liable but the State’s Attorney exempt.’’ 498 F. 2d at

1256, quoting Lewis v. Brautigam, 227 F. 2d 124, 129

(5th Cir. 1955).

App. 23

Deliberate leaking of false information by a prosecu-

tor about a plaintiff to damage his political prospects,

if it in fact occurred, is outside the rationale for abso-

lute immunity and at most, subject to a qualified good-

faith immunity. Helstoski v. Goldstein, 552 F. 2d 564

(3rd Cir. 1977). There, the circuit court remanded for

completion of discovery.

In Hampton v. City of Chicago, Cook County, Illinois,

484 F. 2d 602 (7th Cir. 1973), cert. denied 415 U.S. 917,

94 8. Ct. 1413, 39 L. Ed 2d 471 (1974), it was held on a

motion to dismiss that the state’s attorney had no abso-

lute immunity for planning to use excessive and deadly

force and then executing an illegal raid by police officers

where the purpose was tc ‘‘create fear and terror in the

Black Community.’

In Dodd v. Spokane County, Washington, 393 F. 2d

330 (9th Cir. 1968), it was held on a motion to dismiss

that there is no absolute immunity to claims for damages

against a prosecutor on the ground that he conspired

with officers and subjected plaintiff to threats of vio-

lence, actual assaults and other punishing treatment in

order to force him to testify falsely against an accused

in a criminal trial. To the contrary, absolute immunity

of prosecutors would support dismissal of a complaint

for damages charging that the prosecutor used perjured

testimony to obtain plaintiff’s conviction in that such

allegations related to the prosecutor’s actions in his role

as an advocate associated with the judicial function.

Brawer v. Horowitz, 535 F. 2d 830 (3rd Cir. 1976).

A good example of the type of administrative role

of a prosecutor which carries no absolute immunity is

App. 24

found in Maacini v. Lester, 630 F. 2d 990 (3rd Cir. 1980).

There a lieutenant detective in a prosecutor’s office filed

an action against the county prosecutor seeking damages

for forcing him to resign on the basis of false charges

and thereafter preventing him from obtaining a new

job. There was no criminal action against plaintiff.

Under such a factual situation and applying the fune-

tional test—not the official status of the prosecutor—

the court held that there would be no absolute immunity

if the prosecutor was acting in a purely investigative or

administrative capacity, which the facts seem to indicate.

In citing some of the foregoing cases not in point

for disposition here, we do so only for purposes of illus-

trating what the courts are doing in trying to bracket

the scope of immunity and we do not purport by citation

to decide various unrelated situations in advance. We

only decide the case now before us on its facts and cir-

cumstances and use only the authority pertinent thereto.

Stated in universal terms. from all of the foregoing,

we conclude and hold that to the extent the securing of

information is necessary to a prosecutor’s decision and

preparation to initiate a criminal prosecution, the shield

of absolute immunity attaches and at that point the in-

quiry as to immunity is concluded. It is not our intent

that this rule be so stingily applied that a prosecutor

feels threatened by a suit for damages if his/her investi-

gation is too thorough; otherwise the objectives sought

by immunity would be seriously impaired or destroyed.

This is not an area in which a sharp line may be drawn,

other than by a test of reasonableness. Taking into con-

sideration the perimeters drawn by the many state and

App. 25

federal courts, the facts of this case disclose that before

initiating the criminal prosecution against Rupe, and in

order to prepare for the event, it was necessary, in mak-

ing the decision to prosecute, that Blake check out the

information received that Rupe was a convicted felon.

That the investigation was inadequate or negligently or

spitefully undertaken without probable cause is irrelevant

to the question of immunity once the necessity is shown.

The absolute immunity defeats the action at the outset.

Imbler, 424 U.S. at 419, fn. 13, 96 S. Ct. at 989.

In consideration of the facts before us, as a post-

script, it is worthy of weight that the prosecution of Rupe

was because of what the prosecutor considered perjury

by a prospective juror, arising in a judicial proceeding

by failure to disclose a conviction of a felony. In per-

forming the investigative function, the integrity of the

judicial process was at stake, so not only do we have an

investigation involving the initiation of a criminal pros-

ecution, but a prosecution resulting from alleged in-court

perjury. We therefore find a greater involvement of the

judicial function than the usual investigation by a prose-

cutor in preparation for initiation of the criminal process

by filing of a complaint and trial. To this we add the

fact that for purposes of exercising a peremptory chal-

lenge, it is probably important that the prosecutors know

if a prospective juror was ever convicted of a crime, even

though pardoned. However, the questioning in the case

before us did not hone that fine. This may be a matter

of future concern to prosecutors.

App. 26

On the matter of the news media release’ announcing

the prosecution of Rupe, we hold that such a release is

within the outer perimeter of the prosecutor’s authority

and discretion. In Barr v. Matteo, 360 U.S. 564, 79 S. Ct.

1335, 3 L.Ed. 2d 1434 (1959), an official of a federal

agency was held to have absolute immunity from a libel

action in suspending government employees and announec-

ing by way of a press release the reasons for doing so.

It was held that the press *elease was an appropriate

exercise of discretion within the scope of the officer’s

duties, a matter of wide public interest and concern. See

also Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40

L. Ed. 780 (1896), where an attorney who had been rep-

resenting certain postal employees in collecting salary

7The news release as reflected by news media clippings:

“DOUGLAS—A Douglas city employee has been charged

with perjury, the Converse County attorney's office said

Thursday.

“The charge against Thomas Rupe, a Douglas building in-

spector, states that Rupe was convicted of a felony and

served a prison sentence but did not say so when inter-

be tg af jury duty, a spokesman for the county attorney's

office said.

“Persons convicted of a felony are not qualified to serve

on a jury.

“Rupe was a member of the 1979 jury pzael of the Eighth

Judicial District. He served on the jury panel in the Au-

sama first-degree murder of Donald Gorman, who was

ound innocent.

“He was also tentatively seated as a juror for the first-

degree murder trial of Dennis and Derrick Parkhurst of

Casper, which ended in a mistrial Sept. 20 before jury

selection was completed.

“Prospective jurors are told in one statement at the be-

ginning of selection if any have been convicted of a felony,

are disabled or are over-age, that they are not qualified.’

App. 27

claims sued the postmaster general for libel because he

circularized information to postal employees that no at-

torney was necessary to collect certain salary adjustment

claims, authorized by Congress. The Court held that the

postmaster general had absolute immunity and his mo-

tives could not be questioned.* In Candelaria v. Robin-

son, supra, it was held proper for a prosecutor to, by

press release, inform the public as a matter of public

interest of official acts within the scope of his duties.

Even if it was defamatory, which it was not, see Com-

ment ¢ to 4656, Restatement, Torts 2d, supra:

“ce, Policy of the law. The absolute privilege of the

public prosecutor under the rule stated in this Sec-

tion is based upon the same policy of law that gives

immunity from liability to a public prosecutor who,

in the course of a criminal prosecution, publishes de-

famatory matter about the accused or third persons,

on which see § 586, Comment b.”

Section 586:

“An attorney at law is absolutely privileged to pub-

lish defamatory matter concerning another in com-

munications preliminary to a proposed judicial pro-

ceeding, or in the institution of, or during the course

and as a part of, a judicial proceeding in which he

participates as counsel, if it has some relation to the

proceeding.”

Comment b to § 586:

“bh. Prosecuting attorneys. The rule stated in this

Section is applicable to attorneys who participate in

8See Walker v. Cahalan, 542 F. 2d 681 (6th Cir. 1976), cert.

denied 430 U.S. 966, 97 S. Ct. 1647, 52 L. Ed. 2d 357, where

prosecutor was not granted absolute immunity for press release

made after there was soy pending in court because of a

nolle prosequi, to which case it pertained.

App. 28

judicial proceedings, whether civil or criminal. It

protects a prosecuting attorney as well as a defense

attorney in a criminal action. So too, it affords pro-

tection to a prosecuting attorney while conducting an

investigation before a grand jury, and this is true

irrespective of the outcome of the investigation.”

See also, Foster v. Pearcy, supra.

We likewise so hold. For the same reasons we find no

objection to the prosecutor informing Rupe’s employer that

charges had been filed against Rupe.’ The employer had a

right to know.

The hiring of Blake’s investigator was discretionary.

Foster v. Pearcy, supra; §895D (3) (a), Restatement,

Torts 2d, infra.

Blake’s motion to dismiss should have been granted.

V

As to Dekmar, the case was submitted to the jury upon

the plaintiff’s claims of (1) maliciously instituting criminal

proceedings against plaintiff; (2) negligently or recklessly

conducting his investigation of the perjury charges against

plaintiff; (3) intentionally or recklessly causing plaintiff

severe emotional distress; and, (4) by publicizing matters

Section 577, Restatement, Torts 2d:

“(1) Publication of defamatory matter is its communica-

tion intentionally or by a negligent act to one other than

the person defamed.

“(2) One who intentionally and unreasonably fails to re-

move defamatory matter that he knows to be exhibited

on land or chattels in his possession or under his control

is subject to liability for its continued publication.”

App. 29

of a kind highly offensive to an ordinary man concerning

the private life of the plaintiff.

The liability or non-liability of Dekmar is based upon

a different rule than that applicable to Blake. As an in-

vestigator, he performs police and investigative functions.

It is not his function to enter into and make the decision to

prosecute, nor does he have the responsibility of presenting

the State’s case for determination. His role does not have

the intimate association with the judicial function as that

thrust upon the prosecutor. Accordingly, the courts almost

unanimously apply a rule of qualified immunity to one in

Dekmar’s position. The test is whether the complained of

action was taken in good faith with reasonable grounds

therefor in the light of all the circumstances.

Different than in the case of prosecutors, the common

law has never granted police officers an absolute immunity.

Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d

288 (1967). That case is one of the root authorities for

this court’s decision in Rodarte v. City of Riverton, Wyo.,

552 P.2d 1245 (1976), upon which Rupe seems to rely.

Rodarte only decided that, in a civil action for wrongful

arrest or imprisonment involving a warrantless arrest, the

police officer had as a defense that he acted in good faith

and with probable cause, a jury question. We do not in the

ease before us have a warrantless arrest but a summons’?

to appear issued upon a complaint. Rupe was not arrested

and spent no time in custody or in jail.

Rupe also cites Consumers Filling Station Company

v. Durante, 79 Wyo. 237, 333 P. 2d 691 (1958) to support

104 summons may be issued instead of a warrant of arrest

re requested by the county attorney. Rule 4, W.R. Cr.

P. J.C.

App. 30

his position that Dekmar participated in this prosecution

by filing a complaint against Rupe without probable cause,

one of the elements of malicious prosecution. That case

is not in point in that it involves an allegedly malicious civil

action initiated by a private person. Malicious prosecu-

tion is not an action available against a law enforcement

official. The elements of such an action are as set out in

§ 653, Restatement, Torts 2d:

“A private person who initiates or procures the in-

stitution of criminal proceedings against another who

is not guilty of the offense charged is subject to liabil-

ity for malicious prosecution if

“(a) he initiates or procures the proceedings with-

out probable cause and primarily for a purpose other

than that of bringing an offender to justice, and

“(b) the proceedings have terminated in favor of the

accused.”

Dekmar is not a private person.'' This view is supported

by Annotation, Civil liability of law enforcement officers

for malicious prosecution, 28 A. L. R. 2d 646 and Prosser,

Torts $119, pp. 837-838 (4th ed. 1971). The prosecutor,

not the officer lodging charges, was responsible for the

prosecution in this instance, as well.

On the other hand, Dekmar claims that he is entitled

to aboslute immunity. His defense is premised upon the

“Even if such an action were available, Dekmar would have

a complete defense in that he acted not only upon advice of

counsel but at the direction of Blake, the prosecutor. Boyer v.

Bugher, 19 Wyo. 463, 120 P. 171 (1912); Restatement, Torts 2d

It would be an obvious — to hold the prosecu-

tor immune and the investigator liable. There must be sym-

metry of treatment. Police officers are not required to predict

- Bang peril whether the prosecutor's advice and direction was

awful.

App. 31

state of the facts which indicate that he only did what he

was told to do by Blake, the prosecutor. The evidence

further indicates that most of the investigation was econ-

ducted by Blake. The press releases were prepared by

Blake and distributed by Dekmar.

There is a special body of law which has been de-

veloped to give a measure of protection to a public official

from the harassment and risk of being muleted in damages

for mistakes he may make in the performance of his public

duties. The background of the rule is best articulated in

Scheuer v. Rhodes, 416 U.S. 232, 94 8. Ct. 1683, 40 L. Ed.

2d 90 (1974) :

“e * * [T]he common law soon recognized the neces-

sity of permitting officials to perform their official

functions free from the threat of suits for personal

liability. This official immunity apparently rested,

in its genesis, on two mutually dependent rationales:

(1) the injustice, particularly in the absence of bad

faith, of subjecting to liability an officer who is re-

quired, by the legal obligations of his position, to

exercise discretion; (2) the danger that the threat of

such liability would deter his willingness to execute

his office with the decisiveness and the judgment re-

quired by the public good.

“* * * [I]t is important to note, even at the outset,

that one policy consideration seems to pervade the

analysis: The public interest requires decisions and

action to enforce laws for the protection of the public.

Mr. Justice Jackson expressed this general proposition

succinctly, stating ‘it is not a tort for government to

govern.’ Dalehite v. United States, 346 U.S. 15, 57, 73

S. Ct. 956, 979, 97 L. Ed. 1427 (1953) (dissenting opin-

ion). Public officials, whether governors, mayors or

police, legislators or judges, who fail to make deci-

App. 32

sions when they are needed or who do not act to im-

plement decisions when they are made do not fully

and faithfully perform the duties of their offices. Im-

plicit in the idea that officials have some immunity—

absolute or qualified—for their acts, is a recognition

that they may err. The concept of immunity assumes

this and goes on to assume that it is better to risk

some error and possible injury from such error than

not to decide or act at all. In Barr v. Matteo, 360

U.S. 564, 572-573, 79 S. Ct. 1335, 1340, 3 L. Ed. 2d

1434 (1959), the Court observed, in the somewhat

parallel context of the privilege of public officers

from defamation actions: ‘The privilege is not a badge

or emolument of exalted office, but an expression of

a policy designed to aid in the effective functioning

of government.’ See also Spalding v. Vilas, 161 U.S.,

at 498-499, 16 S. Ct., at 637.”

While Dekmar had the badge of a deputy sheriff to

facilitate the execution of his duties, he was not acting in

that capacity. His responsibility must be tested by what

function he was performing with respect to plaintiff's

claim. His office was that of investigator hired by the

county and prosecuting attorney to do such investigative

work as she might assign. There can be no question but

that he is a part of the executive branch of government.

His duties on no occasion would ever rise to those of quasi-

judicial such as attach to a prosecutor when involved in

and preparing for initiation of a criminal prosecution.

The Supreme Court in Scheuer fashioned a rule we

hold applicable to Dekmar:

“* * * [A] qualified immunity is available to officers

of the executive branch of government, the variation

being dependent upon the scope of discretion and re-

sponsibilities of the office and all the circumstances

as they reasonably appeared at the time of the action

App. 33

on which liability is sought to be based. It is the ex-

istence of reasonable grounds for the belief formed at

the time and in light of all the circumstances, coupled

with good-faith belief, that affords a basis for quali-

fied immunity of executive officers for acts performed

in the course of official conduct. * * *”

Dekmar had no discretion or responsibility in making the

decision to prosecute. He was a layman not acting as one

learned in the law, acquainted with the nuances of whether

Rupe had been pardoned.” The investigation had been

conducted by his superior and there is no showing that he

had reason to question her professional skills. There is no

showing that he had reason to question her professional

skills. There is no question that Rupe was convicted of a

felony and that he did not mention that fact upon general

questioning of the jury. In fact, according to Rupe’s own

testimony, he was not aware of any document that his civil

rights had been restored or a certificate of discharge is-

sued until produced at the preliminary hearing.

The rule of Scheuer is more simply stated to be that

a public official enjoys a qualified immunity if he in good

faith entertains a reasonable belief that his actions are

lawful, notwithstanding a subsequent judicial determina-

"In order to determine whether Rupe had been pardoned,

it was necessary to sift through the statutes. His discharge

document did not use the term “pardon.” At the time of filing

the criminal complaint against Rupe for perjury, the Wyoming

procedure of pardoning a prisoner on discharge was somewhat

unique. No similar treatment was given the criminal convicted

of a felony who successfully concluded a period of probation.

That appeared to be an inconsistency in the law, eventually

recognized by the amendment of 1981, fn. 2, supra. The un-

usual automatic pardon has thus been eliminated. As indicated

in the concurring opinion, whether Dekmar was lawfully par-

doned is not open and shut.

App. 34

tion that they are not; courts will not unfairly use hind-

sight in assessing official actions challenged in litigation.

Apton v. Wilson, supra, 506 F. 2d 83.

That rule of qualified immunity for police, including

investigators and other members of the executive branch,

is a generally accepted doctrine. Atkins v. Lanning, su-

pra; Ross v. Meagan, supra; Forsyth v. Kleindienst, su-

pra.

The rule as we have stated it has arisen principally in

cases claiming a violation of civil rights under the federal

Civil Rights Act, 42 U.S. C. § 1983. However, we adopt it

as equally applicable to the allegedly tortious conduct of

public officers against whom damages are sought. We find

it singularly simple and much easier to apply than the

many complexities found in the general law of torts. It is

not inconsistent with the rule of law set out in § 895D, Re-

statement, Torts 2d, and as explained by accompanying

comments :

“(1) Except as provided in this Section a public offi-

cer is not immune from tort liability.

“(2) A public officer acting within the general scope

of his authority is immune from tort liability for an

act or omission involving the exercise of a judicial or

legislative function. [Prosecutor]

“(3) A public officer acting within the general scope

of his authority is not subject to tort liability for an

administrative act or omission if

“(a) he is immune because engaged in the exer-

cise of a discretionary function,

“(b) he is privileged and does not exceed or

abuse the privilege, or

“(c) his conduct was not tortious because he

was not negligent in the performance of his re-

sponsibility.”

App. 35

Comment (e) after discussing absolute immunity goes on

to explain:

“Tn a second situation, the existence of the ‘immunity’

may be treated as meaning that the officer is not liable

if he made his determination and took the action that

harmed the other party in good faith, in an honest ef-

fort to do what he thoughc the exigencies before him

required. Here, in a suit against him, his guvod faith

is an issue of fact before the court and there is always

the possibility that the court may make an incorrect

determination regarding it. It may be questioned

whether this is more properly called an iminunity or

a privilege. If the action against the officer is for an

intentional tort in which the officer knows that he is

imposing the harm on the other party or is substan-

tially certain to do so, this could properly be called

a privilege. But if the action is for negligence, for

acting or failing to act, thus creating an unreasonable

risk of harm, it would be called an immunity. There

are no privileges in a negligence action, since the is-

sues involved are treated in the issue of whether the

conduct was negligent. For this reason it seems ap-

propriate to treat the defense as an immunity in both

situations. It is a limited immunity, but it is as broad

as good faith.

“In a third situation, the existence of the ‘immunity’

may mean that the officer is not liable if his deter-

mination to take or not to take the action was reason-

able. In a tort action against him, there is thus an-

other issue of fact—the reasonableness of his decision,

if he is acting in good faith. The trier of fact is not

deciding whether he was right in his determination

but whether he made a reasonable determination. In

an action for an intentional tort, this is accurately de-

scribed as a privilege. It is sometimes described as

a defeasible or conditional privilege, as distinguished

from an absolute privilege. In an action for negli-

gence, the question of whether the officer acted rea-

App. 36

sonably is actually one of whether he was negligent

or not. The standard of what a reasonably prudent

person would do under like circumstances applies. O1°

of the circumstances is that he may be acting in a pro-

fessional capacity rather than performing mini-

sterial acts. This means that, like the doctor or law-

yer, he is held to a higher degree of skill and knowl-

edge and training and expertise, but also that he may

be given substantially wider discretion in the exercise

of that knowledge and expertise and that he may be

held not liable for a ‘mere error judgment.’ This is

sometimes expressed by stying that he is liable only

for action that is palpably unreasonable. It is mis-

leading and productive of confusion to speak of im-

munity to tort Jiability in either of these situations.”

This court, in Wendling v. Cundall, Wyo., 568 P. 2d

888, 890 (1977), has expressed an Illinois definition of

“good faith” as being honest, lawful intent, and the con-

dition of acting without knowledge of fraud and without

interest to assist in a fraudulent or otherwise unlawful

scheme, together with the definition set out in Cone v.

Ivinson, 4 Wyo. 203, 33 P. 31 (1893):

“ * * * ‘Good faith consists in an honest intention to

abstain from taking any unconscientious advantage

of another, even though the forms or technicalities

of law, tugether with an absence of all information

or belief of facts which would render the transaction

unconscientious.’ ”

While the term “reasonable” hardly needs defining,

this court has undertaken to do so in Claussen v. State,

21 Wyo. 505, 516, 183 P. 1055, 1056 (1913), wherein it was

explained from Webster “as having the faculty of rea-

son; rational; governed by reason; being under the in-

fluence of reason; thinking, speaking, or acting ration-

App. 37

ally, or according to the dictates of reason; agreeable to

reason; just; rational.” We find no evidence of bad

faith or unreasonable conduct by Dekmar; so we must

conclude as a matter of law that he acted reasonably, in

good faith in light of all the circumstances existing at the

time. Dekmar’s motion for summary judgment should

have been granted, or, at the very latest, Dekmar’s mo-

tion for a directed verdict at the close of plaintiff’s evi-

dence should have been granted.

VI

This part is added because we raised the issue of

timeliness of the notice of appeal. The parties are en-

titled to know not only that we hold the notice timely,

but also the reasoning therefor. The design of this part

also meets the dissenting opinions. The concurring opin-

ion bolsters the views here expressed.

The applicable rules for interpretation are:

Rule 2.01, W.R.A.P., in pertinent part:

“An appeal, civil or criminal, permitted by law from

a district court to the Supreme Court, shall be taken

by filing a notice of appeai with the clerk of the

district court within fifteen (15) days from entry of

the judgment or final order appealed from and serv-

ing the same in accordance with the provisions of

Rule 5, W.R.C.P., unless a different time is pro-

vided by law * * *. The running of the.time for

appeal in a civil case is terminated as to all parties

by a timely motion made by any party pursuant to

any of the rules hereinafter enumerated, and the full

time for appeal commences to run and is to be com-

puted from the entry of any of the following orders

made upon timely motion under such rules, or when

App. 38

such motions are deemed denied: granting or deny-

ing a motion for judgment under Rule 50(b), W.R.

C.P.; granting or denying a motion under rule

52(b), W.R.C.P., to amend or make additional find-

ings of fact, whether or not an alteration of the judg-

ment would be required if the motion is granted;

granting or denying a motion under Rule 59, W.R.

C.P., to alter or amend the judgment; or denying a

motion for a new trial under Rule 59, W.R.C.P.”

(Emphasis added.)

Rule 50(b), W. R.C.P., in pertinent part:

“ * * * Motions for judgment notwithstanding the

verdict shall be determined within sixty (60) days

after the entry of the judgment, and if not so deter-

mined shail be deemed denied, unless within such

sizty (60) days the determination is continued by

order of the court. but a continuance shall not extend

the time to a day more than 90 days from the date

of entry of judgment.” (Emphasis added.)

Rule 59(f), W. R.C. P.:

“Motions for new trial and motions to alter or amend

a judgment shall be determined within sixty (60)

days after the entry of the judgment, and if not so

determined shall be deemed denied, unless within

such sixty (60) days the determination is continued

by order of the court but a continuance shali not

extend the time to a day more than 90 days from the

date of entry of judgment.” (Emphasis added.)

First, let it be noted that nowhere in any of these rules

appears any requirement that the order of continuance

referred to must be in writing, labeled “continuance” and

signed by the district judge, or even so written and signed

by anyone else. The only critical requirements are that

there be a continuance based upon an order and that the

total time from date of judgment for determination not

exceed ninety days.

App. 39

The judgment on the verdict was entered on April

27, 1981. On May 5, 1981, appellants as defendants

timely filed their motion for judgment notwithstanding

the verdict and motion for new trial or remittitur. That

filing under Rules 50(b) and 59(f), W.R.C.P. termi-

nated the running of the time for appeal under Rule 2.01,

W.R.A.P. The case had been tried in Douglas, Converse

County, Eighth Judicial District, by the district judge,

The Honorable Paul T. Liamos, Jr., of the Sixth Judicial

District, who resides in Newcastle. Judge Liamos sat on

the case by assignment. On May 22, 1981, there was filed

in the records of the district court for Converse County

and entered in the court’s journal, Vol. 26, page 50:

IN THE DISTRICT COURT

EIGHTH JUDICIAL DISTRICT

State of Wyoming ) ss

County of Converse )

Civil No. 8360

THOMAS N. RUPE,

Plaintiff,

vs.

RUTH BLAKE and LOUIS DEKMAR,

Defendants.

NOTICE OF SETTING

(Filed May 22, 1981)

PURSUANT TO ORDER made upon The Court’s

own Motion in the above case, notice is hereby given that

Monday the 29 day of June 1981 at 5:30 P.M. has been

set for Hearing of all of Defendants’ Motions, in said

App. 40

cause. Parties and counsel will govern themselves accord-

ingly, and copies will be mailed to parties and/or counsel

of record in the manner provided by law.

IF A COURT REPORTER is needed for the above

setting, counsel should make early arrangements with the

appropriate Reporter.

Cases shall not be continued upon stipulation of coun-

sel alone, but such continuances may be allowed by order

of the Court. No such continuance shall be allowed ex-

cept for good cause shown.

Dated this 22 day of May, 1981.

Docket ¥

Judgment —

Journal 26

Page 50

JOAN LORE

CLERK DISTRICT COURT

by /s/ Maxine Sundquist

Deputy

Copies to:

Judge Paul T. Liamos, Jr.

Raymond B. Hunkins

Hirst and Applegate

John E. Stanfield

Board of County Commissioners

388

The above record ef the order of the court setting the

hearing was made prior to expiration of the initial sixty-

day limit of Rules 50 (b) and 59 (f), W.R.C. P. The date

set for the hearing was after the sixty days fixed by those

rules. On July 10, 1981, still prior to expiration of the

App. 41

ninety-day limit of the same rules, Judge Liamos signed

an order denying defendants’ post-trial motions. On July

23, 1981, appellants-defendants’ notice of appeal was filed

within the 15 days from the order of denial as required

by Rule 2.01, W. R. A. P.

A full-blown hearing was held at the June 29, 1981

setting of the post-judgment motions. There is nc mo-

tion by the plaintiff-appellee or any other showing any-

where in the record objecting to the hearing set for that

time on the ground that there had been no continuance by

order of the court for determination of the motions. The

transcript of the hearing on June 29, 1981, fails to disclose

the slightest hint that it was irregular as being out of time

or not properly continued. The whole atmosphere reflected

by the record and hearing by adversary counsel and the

trial judge was that if a continuance by order of the court

was necessary, it was granted and evidenced by the court

through the notice of setting and the conduct of all par-

ticipants.

Rule 59 (f), in the part with which we are concerned,

was originally a part of the Code of Civil Procedure, hav-

ing been enacted by the legislature as chapter 112, Session

Laws of Wyoming 1935." The Federal Rules of Civil Pro-

cedure contain no such provision. The purpose of such a

rule is explained by this court in Board of Com’rs of

Chapter 112, S. L. Wyo. 1935:

“Motions for new trial shall be determined within sixty

days after the rendition of judgment, and if not so deter-

mined shall be deemed denied, unless continued by order

of the court, or by stipulation.”

Continuance by stipulation is not now allowed by the rule.

App. 42

Natrona County v. Casper Nat. Bank, 55 Wyo. 144, 96 P.

2d 564 (1939) :

‘Statutes of this kind in substance have been enacted

in a number of States of the Union, and, without un-

dertaking to be exhaustive, we may mention the com-

monwealths of Montana, California, Oregon, Wiscon-

sin, Arizona, Alabama and Colorado. The enactment

of such laws is evidently with the idea of expediting

court business and preventing trial judges from keep-

ing motions for new trial under advisement for an un-

reasonable length of time. Statutes of this character

have generally been held to be mandatory. * * *”

While that case dealt with the statute which provided for

a stipulation for continuance, it contains a discussion of

the subject which gives useful insight into the functions

of the rule. In that case this court noted that there was

no order of continuance, but the parties appeared and

argued a motion for new trial and the court entered an

order on the merits after the sixty-day period prescribed

by statute. This court further observed that the motion

was argued and contested on its merits, and both parties,

as well as the court, treated the motion as undisposed of

by operation of law. There is more to the case than first

meets the eye. It speaks approvingly of precedent from

other states with similar statutes or rules that the parties

may waive any right to claim a discontinuance of the mo-

tion consequent from the absence of an order by appear-

ing and unreservedly contesting the merits of the motion

for new trial. By the same token, in the case before us,

the parties and the trial court treated the hearing and de-

termination of the motions as continued—and what could

be more reasonable! It was further held that denial of

such a motion by operation of law is for the benefit of the

App. 43

party who obtained the judgment and may be waived by

him by appearance and failure to object. This court like-

wise approved the following in Board of Com’rs, supra,

now rewritten and appearing in 21 C.J.S. Courts § 109,

pp. 163-168:

“‘A want of jurisdiction of the subject matter cannot

be waived; but where a court has general jurisdiction

of the subject matter a lack of jurisdiction of the par-

ticular case may be waived, as may other objections

to jurisdiction, such as lack of jurisdiction of the per-

son. An objection, if it can be waived, is waived,

among other methods, by invoking, or submitting to,

the court’s jurisdiction. [Black letter rule.]

“An absolute want of jurisdiction of the subject mat-

ter or cause of action cannot be waived, and such jur-

isaiction cannot be conferred by waiver. Accordingly

a lack of jurisdiction of the subject matter is not

waived by answer, general demurrer, failing to demur,

failing to object to, or otherwise raise the question of,

jurisdiction, going to trial on the merits, moving for

a new trial, appealing, or partially complying with

the judgment. Moreover, the objection that the court

completely lacks jurisdiction of the subject matter

may be raised in any manner.

“On the other hand, objections to the venue, the pro-

cedure, including the procedure by which the court ac-

4As it appeared in 15 C. J. 845 | 164, quoted in Board of

oa of Natrona County v. Casper Nat. Bank, 96 P. 2d 564 at

“ ‘But, where the court has general jurisdiction of the sub-

jes -matter, a lack of jurisdiction of the particular case may

waived by failure to take timely and specific objections,

or an invocation of or submission to the jurisdiction may

raise an —— to deny such jurisdiction. So also the

parties may either expressly or by their conduct, waive

objections to remedies pursued in courts having jurisdic-

tion of the subject-matter.’ ”

App. 44

quired jurisdiction of the particular case, or the rem-

edy pursued may be waived, as may a lack of juris-

diction of the person.

“Where the court has general jurisdiction of the sub-

ject matter, a lack of jurisdiction of the particular

case, as dependent upon the existence of particular

facts, may be waived.

“What constitutes waiver. Objections to lack of jur-

isdiction of the person, and other objections to juris-

diction not based on the contention that there is an

absolute want of jurisdiction of the subject matter,

are waived by invoking the court’s jurisdiction, as by

a cross bill or counterclaim, consent, or voluntary sub-

mission, to jurisdiction, or conduct amounting to a

general appearance, or objecting to the jurisdiction of

the subject matter, failing to raise the question of

jurisdiction in the proper manner, seeking relief on

a ground additional to, or other than, want of juris-

diction, appealing, or by any other conduct indicating

an intention to abandon or forego the objection.” (Dis-

cussion of Rule. Emphasis added and footnotes omit-

ted.)

The dissent overlooks the fact that courts are for liti-

gants as the affected parties. We do not function for the

purpose of demonstrating our authority and awesome

power to wave a wand and make an appeal disappear, but

exist to administer justice to those who come to settle

their disputes. The deadline provisions of Rules 50 (b)

and 59 (f) have served our purpose of expediting litiga-

tion. The motions were determined within the limits of

the rule. It is not our function to concoct a rule viola-

tion, when there is evidence of a continuance not only by

conduct but by express order of the district court. The

circumstances here are unlike any in cases where we have

decided a nctice of appeal to be untimely,

App. 45

There is authority in Brasel and Sims Construction

Co. v. Neuman Transit Co., Wyo., 378 P. 2d 501 (1963)

for finding a continuance in the record. In that ease the

defendant moved for a new trial under Rule 59 (f)'5 and

later moved for an extension of time for determination of

the motion to August 23. The motion was argued on

August 21, taken under advisement by the district judge

but was not determined until October 11 by entry of an

order overruling the motion. The determination was only

continued to August 23 but this court said: “In the in-

stant situation both court and counsel at the time of the

hearing of the motion apparently proceeded as if the con-

tinuance was to be effective until the matter was resolved

by the trial court. Accordingly, the motion to dismiss

{in the supreme court] must be overruled.” That is ex-

actly what occurred in the case before us—the court and

counsel proceeded as if a continuance had been granted,

even if it had not.

This court, by In re Potter’s Estate, Wyo., 396 P. 2d

438 (1964), held that there may be an implied continu-

ance under Rule 59(f), supra, by the action of the trial

judge in permitting delay in entry of an order overruling

a motion for new trial. He thus manifests an intent to

continue determination of the motion.

'SRule 59 (f), W. R. C. P. at that time provided:

“Motions for new trial shall be determined within sixty

days after the entry of the judgment, and if not so deter-

mined shall be deemed denied, unless within such sixty

days the determination is continued by order of the court

or by stipulation.”

As with the transplanted statute, fn. 13, continuance by stipula-

tion is not allowed.

App. 46

In Brasel, supra, this court also noted that there was

a lack of clarity of Rule 59(f), W.R.C.P. in such a situa-

tion. There is also a lack of clarity in Rules 50(b) and

59(f), W.R.C.P. as to what to do in the appeal now be-

fore us under the circumstances. We do as this court

did in both Board of Com’rs and Brasel—proceed as did

the trial judge and counsel on the basis that there was

an effective continuance of the determination. The case

at bar is stronger than either of those cases because there

is present here a notice of setting evidencing an order

of the court continuing the matter to meet his convenience

as a visiting judge.

Rather recently this court has refused to dismiss an

appeal because of lack of clarity in the applicable rule.

In Downs v. State, Wyo., 581 P. 2d 610 (1978), this court

refused to dismiss an appeal even though this court itself

had raised the question of timeliness of the notice of ap-

peal, stating that “[bJefore we will dismiss an appeal for

failure to file a timely notice of appeal, there must be

clear grounds for doing so.” It is judicially unbecoming

to set traps for trial judges and counsel, and we should

not construe our rules to reach that result.

What is a continuance? Black’s Law Dictionary

(1979) defines it: “Continuance. The adjournment or

postponement of a session, hearing, trial, or other pro-

ceeding to a subsequent day or time. Also the entry of

a continuance made upon the record of the court, for the

purpose of formally evidencing the postponement, or of

connecting the parts of the record so as to make one con-

tinuous whole.” Ballentine’s Law Dictionary (1948):

“continuance. An adjournment of a cause from one day

App. 47

to another, which may be in the same or in a later term,

although the word ‘postponement’ is preferable where a

trial or hearing is delayed only until a later day of the

same term, or until a later hour of the same day.” Web-

ster, Third International: “Continuance. * * * 5: the

adjournment of the court proceedings in a case to a fu-

ture day; also: the entry of such adjournment and the

grounds thereof on the record.” Continuance is the post-

ponement of an action pending in a court to a subsequent

day . Ferber v. Brueckl, 322 Mo. 892, 17 S. W. 2d 524, 527

(1929). A continuance generally means only that the

date of hearing is postponed. It does not affect the mer-

its of a case; it leaves all matters as they were before,

except that the time is changed. McKinney v. Hirstine,

257 Iowa 395, 131 N. W. 2d 823, 825 (1964). Substance

must prevail over mere form, and postponement of court

action is a continuance whether or not it is so labeled.

Simakis v. District Court of Fifth Judicial for Eagle

Cty., 194 Colo. 436, 577 P. 2d 3, 5 (1978).

Other states, where similar code procedure or court

rules provide deadlines for disposing of post-trial mo-

tions, have no problems finding continuances from the

circumstances. In Patch v. Buros, 2 Ariz. App. 585, 410

P. 2d 703 (1966), the Arizona Rule of Civil Procedure

59(e), tracking the same numbering system as our rules,

provides that “[m]otions for new trial shall be determined

within twenty days after rendition of judgment, and if

not so determined shall be deemed denied, unless con-

tinued by order of the court, or by stipulation.” The trial

court took the motion under advisement and entered in

its minutes, “ORDER taking * * * Motion for New Trial

under advisement.” It was held that the order taking

App. 48

the motion under advisement is an “order of the court”

by which a motion for new trial may be “continued.”

Patch cited Zugsmith v. Mullins, 81 Ariz. 185, 303 P. 2d

261 (1956) by which the supreme court of Arizona set

the pace for such a resolution by holding that an order

taking the case under advisement is in effect an order of

continuance contemplated by the rule and the trial court

did not lose jurisdiction to rule on the motion.

In Palmer v. Quinn-Robbins Co., 52 Idaho 661, 18 P.

2d 917 (1933) it was held that since a motion for new

trial could not be heard until specifications c* error and

particulars touching alleged errors were filed, an order

extending the time for filing those items necessarily had

the legal effect of extending the time for hearing the

motion.

In State ex rel. Portykus v. Schinz, 176 Wis. 646, 187

N. W. 743 (1922), it was contended that there was no

valid continuance of a motion for new trial because there

was no written order but the court held that an oral order

actually made became the order of the court as effectively

as though entered in writing.

In Ex Parte Schoel, 205 Ala. 248, 87 So. 801 (1921),

it was held that by appearing and unreservedly contest-

ing the motion for new trial, the plaintiff waived any

right to claim a discontinuance consequent upon the ab-

sence of effective orders of continuance of the motion

even though the orders had been made orally from the

bench. The court went on to hold that the entry of rec-

_ord is no more than a ministerial performance as a me-

morial of the judicial pronouncement.

See also Britton v. Burlington Northern, Inc., Mont.

601 P. 2d 1192 (1979) where under Montana’s Rule 59(d),

App. 49

M. R. Civ. P."* the court said it would be “unconscionable”

to not consider a motion for extension of time to file a

brief in support of motion for new trial “by necessary

implication” extended the time for its ruling on the mo-

tion. Montana’s M.R. App. Civ. P., Rule 5, is practically

identical to our Rule 2.01, W.R.A.P. tolling the time

for notice of appeal when a motion for new trial is filed.

The clerk of the district court in issuing the notice

of hearing was conveying to counsel the order of the

court (the assigned district judge) that he was holding

in status quo all proceedings in the case and postponing

Rule 59 (d), M. R. Civ. P.:

“Hearing on the motion shall be had within 10 days after

it has ben served, or within 10 days after the party oppos-

ing the motion for new trial has served his affidavits as set

forth in subparagraph (c) hereinabove except that at any

time after the notice of hearing on the motion has been

served the court may issue an order continuing the hearin

for not to exceed 30 days. In case the hearing is continue

by the court, it shall be the duty of the court to hear the

same at the earliest praticable date thereafter, and the

court shall rule upon and decide the motion within 15 days

after the same is submitted. If the court shall fail to rule

upon the motion within said time, the motion shall, at the

expiration of said period, be deemed denied.

“The decision on the motion may be entered in the min-

utes of the court, or may be made in writing in chambers

or in any county in the state where the judge may be, and

be filed with the clerk of court in the county where the

action is pending. Upon the hearing, reference may be

had in all cases to the pleadings and the orders of the court

on file, and reference may also be had to any depositions

and documentary evidence offered on the trial, and to the

proceedings on the trial and, when necessary, reference

may be had to the notes of the court reporter.

“If the motion is not noticed up for hearing and no hearing

is held thereon, it shall be deemed denied as of the expira-

tion of the period of time within which hearing is required

to be held under this Rule 59.”

App. 50

(continuing) the determination of the motions, until a

hearing could be held. His order to the clerk and the

notice of setting were prior to expiration of the initial

sixty-day limitation of Rules 50(b) and 59(f), and the

date set for the hearing was within the ninety-day maxi-

mum for determination, at the end of which period would

be discontinuance of the court’s jurisdiction to act.

The clerk of the district court in doing so was carry-

ing out her duties prescribed by § 5-3-202, W.S. 1977:

“* * * He [she] shall attend upon the terms of court

held in the county for which he [she] is elected, and

perform such duties relating to his [her] office as

may be required of him [her] by the court, and shall

perform all such other duties relating to his [her]

office as are required of him [her] by law or the rules

and practice of the courts.” (Emphasis added.)

The notice reflecting that there was a continuance by

order of the court is evidenced by the fact that Judge

Liamos was present and appeared in the courtroom at the

time designated (the setting was for 5:30 p.m. but the

transcript showed the proceeding as starting at 6:00

p.m.). The court announced:

“THE COURT: Court’s in session in Civil Action

# 8360, Thomas N. Rupe against the Board of County

Commissioners of the County of Converse, et al.

“We have several motions that have been filed by the

defendants and, Mr. Parker, are you ready to pro-

ceed, sir?”

The parties certainly treated the notice of setting as an

order of the court because both sides filed preargument

briefs and were present in accordance with the direction

of the notice.

App. 51

The clerk performed a “dut[y] * * * required * * *

by the court.” The clerk, the judge, counsel for the plain-

tiff and counsel for the defendants all responded in such

a fashion that the procedures followed as a “practice of

the court.” The notice was on a printed form, further

evidence of an established practice expected and followed

by the bar.

It would be astonishing that anyone would even im-

agine that the clerk of court was undertaking to act like

a judge or usurp any power of the court rather than

performing a ministerial duty. The notice of hearing was

an affirmative record memorializing an action by the

trial court. There is no doubt that if the parties had

treated the notice as some frivolous, unauthorized action

by the clerk, that would have appeared in the record and

the notice of appeal would have then justifiably been un-

timely.

In State v. Dickson, 53 Wis. 2d 532, 193 N. W. 2d 17

(1972), cited in the dissent, the clerk’s “order” did not

indicate that it was issued as an order of the court as

here where the clerk in the notice made it clear that she

was only carrying out the order of the court on his own

motion. Furthermore, the Dickson case was an appeal

from action of a judge holding an attorney and his client

in contempt for the attorney’s action in calling on the

judge in his chambers and advising the judge that he had

authority to appear for his client and that he would not

have his client present at a pretrial hearing in the crim-

inal case. The real gist of this case was not the notice

but the unlawful action of the trial judge in requiriny

the criminal defendant to be present at a pretrial confer-

ence when there is no such requirement in Wisconsin.

App. 52

There is no element of waiver in that case and the

order of the clerk of court was only held not to be “an

order of the court in the sense used in legal procedures.”

The notice in the present case does not purport to be an

order but only transmits the order of the court itself and

conveys an order in the sense used in legal procedures.

Toulon v. Nagle, 67 Wis, 2d 233, 226 N.W. 2d 480

(1975), cited by the dissent, is likewise not in point. The

court held the appeal untimely because the notice sent

by the clerk did not recite that the extension of time was

by order of the court. The order in the case before us

recites that the notice was by order of the court, The

court further held that the extension was not granted

for cause “as required by see, 270,49, Stats.”"’" We have

no similar statute or rule requiring an extension of deter-

mination for cause, The circumstances are not compar-

able. In passing, it is noted that the Wisconsin court did

go ahead and decide that the new trial should be granted

because it can exercise its discretion and grant a “new

trial in the interest of justice,”

If those authorities are representative as stated by

the dissent, then there is no authority for the position

"The Wisconsin statutes, 4 270.49, then in effect, provided:

“(1) A party may move to set aside a verdict and for a

new trial because of errors in the trial or because the ver-

dict is contrary to law or to the evidence, or for excessive

or inadequate damages or in the interest of justice; but

such motion must be made and heard within 2 months

after the verdict is rendered, unless the court by order

made before its expiration extends such time for cause.

* * *” (Emphasis added.)

App. 53

of the dissent. The overwhelming position of the courts

of other states is that a continuance may be implied from

the circumstances. Nor is there any analogy in Bertag-

nolli v, Bertagnolli, 23 Wyo, 228, 148 P. 874 (1915), where

the clerk entered a default judgment in the face of a late-

filed demurrer, This court only held that the clerk could

not do that. Nor does Kimbel v. Osborn, 61 Wyo. 89,

156 P, 2d 279, 158 A. L. R. 1079 (1945) have any applica-

tion since it simply holds that the statute was not fol-

lowed in entering a default judgment. The key holding

of importance in those eases is from Bertagnolli; and

that is, in entry of a default judgment, the clerk must

follow the statute, In the present case, though not a de-

fault judgment case, the clerk did follow the statute. She

did as directed by the district judge and issued a notice

that he had ordered a hearing in accordance with court

practice, There is no question of the clerk exceeding her

authority, taking off on some frolic of her own, or under-

taking to play judge. She exercised no discretion,

It is for these reasons the court found the notice of

appeal timely and proceeded to decide the appeal on its

merits,

Reversed and remanded with directions to vacate the

judgment in favor of appellee Rupe and enter judgment —

for appellants Blake and Dekmar,

ROONEY, Justice, concurring.

I concur. Inasmuch as many of those discharged

from the penitentiary received certificates of discharge

containing the same or similar language to that contained

in Rupe’s certificate, I want to set forth my belief as to

App. 54

the effect of them and the effect of § 7-18-107, W. 8. 1977,'

pursuant to which the certificates were worded. Insofar

as such section provided that the governor shall issue a

certificate for discharge to convicts which shall restore

“his rights the same as though a full pardon had been

granted,” it was unconstitutional; and any recitation pur-

suant thereto contained in the form for a certificate of

discharge which provides for a restoration of civil rights

had no foree or effect in law.

The power to pardon is in the governor, and only in

the governor, as chief executive of the state. Art. 4, §5,

of the Wyoming Constitution reads in pertinent part:

“The governor shall have power to remit fines and

forfeitures, to grant reprieves, commutations and par-

dons after conviction, for all offenses except treason

and cases of impeachment; but the legislature may by

law regulate the manner in which the remission of

fines, pardons commutations and reprieves may be

applied for, * * * ”

Section 7-13-107 did not leave the discretion to grant par-

dons in the governor, It did not “regulate the manner in

which * * * pardons * * * may be applied for.” It amounted

to a legislative grant of pardon, The legislature could not

constitutionally do so,

“The powers of the government of this state are di-

vided into three distinct departments: The legislative,

executive and judicial, and no person or collection of

persons charged with the exercise of powers properly

belonging to one of these departments shall exercise

any powers properly belonging to either of the others,

'See majority opinion for provisions of 4 7-13-107, W. S.

1977, prior to May 1981 and see fn, 2 of that opinion for pro-

visions thereof after May 1981,

App. 55

except as in this constitution expressly directed or

permitted.” Art. 2,41, Wyoming Constitution.

The legislature has regulated the manner in which “par-

dons may be applied for.” See §§7-13-801 through 7-13-

806, W.S. 1977. Such has been held to not limit the dis-

cretion of the governor in granting pardons. In re Moore,

4 Wyo. 98, 31 P. 980 (1893). Appellee was not pardoned

pursuant to the provisions of these sections. The pardon

allegedly arising from the certificate of discharge was with-

out an exercise of discretion by the governor and was there-

fore invalid.

With respect to the dissent of Chief Justice Rose, I

do not believe, as stated therein, that we have departed

from our standard policy of dismissing appeals when the

notice of appeal is not timely filed. Although an “order

of continuance” is not in the record, I am persuaded that

there is sufficient record reflection or the existence of an

order setting the matter for hearing, and that such order

is sufficient to satisfy the requirement of Rule 59(f),

W.R.C. P.,’ i.e., it was sufficient to indicate that the “de-

termination” of appellant’s motions was “continued by

order of the court.”

With reference to the existence of an order setting

the matter for hearing, the majority opinion notes that

there is no requirement that the order be in writing or

labeled “continuance.” The record contains a notice of

setting which begins: “Pursuant to order made upon the

Court’s own Motion * * * ” (emphasis added), The notice

emanates from the office of the clerk of court. It is signed

*See fn. 1 of Chief Justice Rose’s dissenting opinion for

content of Rule 59 (f), W. R. C. P.

App. 56

by her, and copies were directed to the attorneys for all

of the parties. The order referred to in the notice is not

in the record.

Many orders and rulings of the trial courts are made

orally. The better practice is to either make such in writ-

ing or have them recorded as a part of a verbatim tran-

script of proceedings. However, there are other approved

methods to establish that which occurred during the pro-

ceedings and progress of a case, e. g., Rules 4.03 and 4.04,

W.R.A.P., relative to the state of evidence or proceed-

ings when no report was made or the transcript is un-

available and when correction or modification of the ree-

ord is necessary ‘The recitation of the existence of an

order by the clerk of court, as here done in the notice of

setting, is sufficient evidence of the fact of such order.

In Murry v. State, Wyo., 631 P. 2d 26, 28 (1981), we

noted the potential of an oral order, although its existence

4Although | do not base my determination thereon, Rule

60 (a), W.R.C.P., and Rule 37, W.R. Cr. P., are of interest.

Rule 60 (a), W. R. C. P., provides:

“* * * Clerical mistakes in judgments, orders or other

parts of the record and errors therein arising from over-

sight or omission may be corrected by the court at any

time of its own initiative or on the motion of any party

and after such notice, if any, as the court orders. During

the pendency of an appeal, such mistakes may be so cor-

rected before the appeal is docketed in the Supreme Court,

and thereafter while the appeal is pending ny! be so

orton with leave of the Supreme Court.” (Emphasis

a ,

Rule 37, W. R. Cr. P., provides:

“Clerical mistakes in judgments, orders or other parts of

the record and errors in the record arising from oversight

or omission may be corrected by the court at any time and

a notice, if any, as the court orders.” (Emphasis

App. 57

was not pertinent to the resolution of that case, and its

existence was there evidenced by a statement of proceed-

ings supplementing the record. It was said in an early

ease involving a criminal contempt of court:

“Undoubtedly, in judicial proceedings, an ‘order,’ as

contradistinguished from a ‘judgment,’ is often de-

fined as one reduced to writing, and entered in the

records of the court; and such is the purport of many

of the cases referred to by counsel for the defendant.

But that is by no means saying that such only is an

order. There must, in the nature of things, be an

order of a court made before it is, or can be, written

out in the records of the court by the clerk. When writ-

ten out, the writing becomes a record of the order,

and is evidence of it. Orders are almost daily given

to the marshal concerning matters to be performed in

the presence of the court, and they are s constantly

executed before being written out. Indeed, many of

them are never reduced to writing at all. Yet there

can be do doubt of their validity. Now, the language

of the statute in question is broad enough to include

all valid oral orders. The natural, ordinary meaning

of the word includes written, as well as unwritten,

orders, and there is no reason in the policy of the

law, or in the nature of things, for excluding unwrit-

ten orders. Indeed, the contrary is true. There is

just as much reason and necessity for making it an

offense to resist the execution of a lawful unwritten

order, brought distinetly and authoritatively to the

notice of the offending party, as for making it an of-

fense to resist the execution of one in writing. * * * ”

United States v. Terry, 41 F. 771, 773-774 (1890).

And in a recent case:

“*** An ‘order of a court’ may be oral, as in Comm.

of Pennsylvania v. Local Union 542 (Appeal of Freed-

man), 552 F, 2d 498 (CA 3, 1977). It may be a paper,

bearing the word ‘ORDER’, signed by a judge or other

judicial officer. Or it may be a subpoena, writ of exe-

App. 58

cution or other process.” In Re Grand Jury Proceed-

ings, 503 F’, Supp. 9, 12 (1980).

“** * An order of judgment is the decision of the

court. It may be formulated in writing by the judge,

or declared by him orally. In the latter event the duty

rests upon the clerk to write the substance upon his

records. ‘That was done in this case, and thereupon

the order became entered as completely as if written

out by the judge himself and signed by him, * * * ”

Allen v. Voje, Wis. 89 N. W. 924, 926 (1902).

The fact of an existence of an oral order together with

its import must be determined on a case by case basis. In

this case, the recitation of the fact of the order by the

clerk of court and the fact that it set a hearing on appel-

lant’s motions for June 29, 1981, at 5:30 p.m. are without

question. The integrity of the clerk’s recordation should

be equal to that of a reporter’s transcript.

With reference to the second aspect of the issue, i. e.,

whether or not the order setting the motions for trial at

a date beyond the initial 60 days allowed by Rule 59(f),

W.R.C.P., is sufficient to continue the determination of

the motions into the extended 30-day period, the purpose

behind the entire time table is important. he time table

itself, insofar as this case is concerned, is as follows:

1. Notice of appeal must be filed within 15 days from

the entry of the judgment or final order appealed from

per Rule 2.01, W. R. A. P., and such filing is jurisdictional

per Rule 1.02, W. R.A. P.

2. The running of the time in which to file a notice

of appeal is terminated if a timely motion for a new trial

is filed (as here) per Rule 2.01, W. R.A. P.

8. The motion for a new trial shall be “determined”

within 60 days after entry of the judgment unless “the

App. 59

determination is continued by order of the court” per Rule

59(f), W.R.C.P.

The purpose for setting a mandatory and jurisdictional

time within which a notice of appeal must be filed is:

“ * * * to set a definite point of time when litigation

shall be at an end, unless within that time the pre-

scribed application has been made; and if it has not,

to advise prospective appellees that they are freed of

appellant’s demands. * * * ” Matton Steamboat Co.

v. Murphy, 319 U.S. 412, 415, 63 S. Ct. 1126, 1128, 87

L. Ed. 1483 (1943).

The purpose in terminating the running of the time

in which to file an appeal when a timely motion for a new

trial has been filed is set forth in Browder v. Director, De-

partment of Corrections of Lllinois, 434 U.S. 257, 98 S. Ct.

556, 562, 54 L. Ed. 2d 521 (1978), reh. denied 434 U.S. 1089,

98 S. Ct. 1286, 55 L. Ed. 2d 795 (1978) :

“ * * * The rationale behind the tolling principle of

the Rule is the same as in traditional practice: ‘A

timely petition for rehearing tolls the running of the

[appeal] period because it operates to suspend the fi-

nality of the... court’s judgment, pending the court’s

further determination whether the judgment should be

modified so as to alter its adjudication of the rights

of the parties.’ De artment of Banking v. Pink, 317

U.S. 264, 266, 63 S. Ct. 233, 234, 87 L. Ed. 254 (1942)

(emphasis supplied). * * * ”

The purpose in setting a time for determination of

the motion for a new trial is the same as that for setting a

time in which to file a notice of appeal.

Inasmuch as the purpose in terminating the time in

which to file an appeal is to suspend the finality of the

judgment, it would seem that an order setting a date for

App. 60

a hearing beyond the original 60-day limit, but within the

authorized additional 90 days would be of equal notice and

force to suspend the finality of the judgment until the hear-

- ing date “pending the court’s further determination wheth-

er the judgment should be modified” as would an order

captioned “continuance.”

That such was taken to be so by the trial court and

all of the parties is evidenced by the fact that the hear-

ing was actually held at the time set, with the judge and

all parties in attendance and participating, and with ap-

pellee making no objection to such hearing.‘ See the ma-

jority opinion for an elaboration of this point.

The language of Rule 59(f), W. R. C. P., does not spec-

ify any particular kind of an order to accomplish the con-

tinuation. It provides that the purpose of the order is to

continue the “determination” of the matter. If the hear-

ing on the motion for a new trial were held before the

expiration of the initial 60 days, but the court had not com-

pleted its research or perhaps it had ordered briefs which

were not yet due, the usual order continuing a hearing

would not be proper. An order reflecting the fact of the

hearing and that the matter was taken under advisement

or an order setting time for briefs or some similar order

should be sufficient to continue the “determination” and

extend the time for filing a notice of appeal. An order

‘Although Rule 59 (f), W.R.C.P., then contained an ad-

ditional provision relative to continuation by stipulation, we

said, in overruling a motion to dismiss for failure to file a timely

notice of appeal, that “both court and counsel at the time of

the hearing of the motion apparently proceeded as if the con-

tinuance was to be effective until the matter was resolved by

the trial court.” Brasel & Sims Construction Co. v. Neuman

Transit Co., Wyo., 378 P. 2d 501, 503 (1963).

App. 61

setting a time for the hearing itself should also be suffi-

cient for such purpose.

Generally, the proceedings and actions of the trial

court are presumed to be regular and proper. O’Malley

v. Eagan, 43 Wyo. 233, 2 P. 2d 1063, reh. denied 43 Wyo.

350, 5 P. 2d 276, 77 A. L. R. 582 (1931). I find nothing in

this record to overcome that presumption. There was an

order of the court setting a hearing on the motion for a

new trial at a date beyond the initial 60-day limit contained

in Rule 59(f), W.R.C.P. The order continued the “de-

termination” of the motions. The notice of appeal was

timely filed.

I submit the foregoing as additional grounds for the

holding of the majority opinion.

THOMAS, Justice, concurring and dissenting.

If the issue on the merits in this case is before the court

for disposition, then I agree entirely with the disposition

made of that issue by the majority opinion. I am per-

suaded that it is necessary in our society that the prosecu-

tive discretion of a county attorney should not be inhibited

by the potential of civil action in those cases in which con-

victions are not obtained.

I must dissent, however, from the conclusion that this

court had jurisdiction in this appeal. We long have fol-

lowed the rule that the timely filing of a notice of appeal

is essential to vest this court with jurisdiction. We have

ameliorated the strictness of that rule, however, by now

providing in Rule 2.01, W. R. A. P., that:

“A notice of appeal, in a civil or criminal case, filed

prematurely shall be treated as filed on the same day

App. 62

as entry of judgment or final order, provided it com-

plies with Rule 2.02, W.R. A. P.”

In this case the judgment became final 60 days after the

filing of the motion which sought relief under Rules 50(b)

and 59(f), W. R. C. P., “unless within such sixty (60) days

the determination is continued by order of the court.”

Rule 50(b) and Rule 59(f), W.R.C.P. I am not per-

suaded that a Notice of Setting such as that entered in

this case is a continuance by order of the court. On its

face it is nothing more than a calendaring order which

could be entered by the clerk of the district court upon

advice from the visiting judge as to the dates that he would

be available. Certainly the docket entries in this case do

not reflect any oral order of the court which could serve

as a basis for concluding that there was any continuance

intended.

A legal fiction is an “Assumption of fact made by court

as basis for deciding a legal question. A situation con-

trived by the law to permit a court to dispose of a matter,

though it need not be created improperly; e.g. fiction of

lost grant as basis for title by adverse possession.” Black’s

Law Dictionary, p. 804 (5th Ed. 1979). Iam satisfied that

in this instance the majority has structured a legal fiction

to permit the significant issue on the merits to be reached.

In so doing the effect of an amendment of this rule to take

away the power of the parties to stipulate to the extension

of time for disposition of such a motion either forthrightly

or by inference has been sidestepped very neatly.

I regret that the district courts have been encouraged

by this decision to not deal definitively with such matters.

While perhaps some responsibility must be cast upon coun-

sel to be sure that their appeals are not lost through inad-

App. 63

vertence, in the efficient administration of the business of

the court the district judge has a responsibility for either

disposing of such motions or entering a clear order con-

tinuing the disposition for not more than 30 days. It oc-

curs to me that, based upon the state of the visiting judge’s

calendar, the clerk in this instance could have as easily

set the hearing for some day more than £0 days after the

filing of the motion, and I do not believe that a legal fie-

tion could have been developed to save the matter in that

instance. I do agree with Chief Justice Rose’s thought

that the continuance of the disposition of such a motion

is a matter of judicial discretion which should not in any

manner be delegated to the office of the clerk of the dis-

trict court.

I do have another regret which I will state. During

the years that I have been privileged to serve on this court

we previously have dismissed appeals because of an un-

timely notice in circumstances very similar to and certainly

analogous to these. I would suppose that every one of

those appeals could have been saved by the imposition of

some style of legal fiction similar to that invoked here.

Yet, if our rules of procedure are sufficiently plastic to

permit their adjustment by the imposition of legal fictions

then it seems to me they become guidelines only, not rules.

As such, their utility would be substantially undermined.

ROSE, Chief Justice, dissenting.

Had I been writing for the majority, I would have

found that this court does not have jurisdiction to entertain

this appeal and therefore would have affirmed.

Following the perfection of the appeal in this case, we

discovered a possible jurisdictional defect, and, at oral

argument, we asked the parties to submit additional briefs

}

App. 64

addressing our concerns. Given the provisions of Rule

59(f), W. R.C. P.,' we questioned whether the appellant’s

notice of appeal was timely. The following describes the

sequence of events that gives rise to the problem:

Judgment Entered 4-27-81

Rule 59 Motion Filed 5-05-81

Notice of Setting For 5-22-81

Hearing on Motion? (set for 6-29-81)

Rule 60 Motion Filed 6-22-81

Hearing on Motions 6-29-81

Order Denying Motions Entered 7-10-81

Notice of Appeal Filed 7-23-81

According to Rule 59(f), W. R.C. P., motions for new

trial are deemed denied if not decided within 60 days of

the entry of the judgment, unless a continuance is granted

“by order of the court” (emphasis added) allowing as much

as an additional 30 days within which to determine the

issue raised by the motion. Under this rule, appellant’s

1The operative language of Rule 59 (f), W. R. C. P. is:

“Motions for new trial or to alter or amend a judgment;

time limit.—Motions for new trial and motions to alter or

amend a judgment shall be determined within sixty (60)

days after the entry of the judgment, and if not so deter-

mined shall be deemed denied, unless within such sixty

(60) days the determination is continued by order of the

court but a continuance shall not extend the time to a day

more than 90 days from the date of entry of judgment.”

(Emphasis added.)

?The record reflects the following Notice of Setting entry

by the clerk of court:

“PURSUANT TO ORDER made upon The Court’s own Mo-

tion in the above case, notice is hereby given that Monday

the 29 day of June 1981 at 5:30 P.M. has been set for

Hearing of all of Defendants’ Motions, * * *.”

App. 65

motion for a new trial must be deemed denied by opera-

tion of law on June 26, 1981, unless the clerk of court’s

“Notice of Setting”, which set the date for hearing argu-

ment upon the Rule 59 new trial and Rule 60(b) motions

three days past the June 26 date, amounted to an “order

of the court” granting the permitted extension for ruling

on the motion for a new trial. If this is the effect of the

clerk’s “Notice of Setting”, then appellant’s appeal from

the judgment was timely filed. If this is not the effect of

the clerk’s entry, then the notice of appeal was late and

this court lacks jurisdiction to consider the appeal on its

merits.’

We are faced with this dilemma: In order to hold for

the appellant’s position that the “Notice of Setting” is suf-

ficient to comply with 59(f) time-extension provision, we

must be able to say:

3We said in Rutledge v. VonFeldt, Wyo., 564 P. 2d 350 at

351-352:

“Without a timely noiice of appeal from the judgment,

we are without jurisdiction. Jackson v. State, Wyo., 547

P. 2d 1203; Wyoming Farm Bureau Mutual Insurance Com-

pany v. Vannelli, Wyo., 370 P. 2d 738; Spencer v. Pringle,

51 Wyo. 352, 67 P.2d 204; Fertile Valley Canal Co. v.

Kearney, 37 Wyo. 475, 263 P. 620; Culbertson v. Ainsworth,

26 Wyo. 214, 181 P. 418; Hahn v. Citizens’ State Bank, 25

Wyo. 467, 171 P. 889, reh. den. 25 Wyo. 467, 172 P. 2d

705; Financial Management Corp. v. Wyoming Electric

Sign Co., supra; Bosler v. Morad, Wyo., 555 P. 2d 567;

Bard Ranches, Inc. v. Weber, Wyo., 538 P. 2d 24, reh. den.,

Matter of Final Proofs of Appropriation of Following Water

na Wyo., 541 P.2d 791; and Bowman v. Worland

School Dist., Wyo., 531 P. 2d 889.

“Even though these jurisdictional deficiences were not

called to our attention by the parties, it was, nevertheless,

our unhappy obligation to call them up ourselves. Jack-

son v. State, supra, and authorities therein contained.”

App. 66

1. The “Notice of Setting” for hearing argument on

appellant’s motion for a new trial is actually an order

extending the time limitation within which the court

por decide the motion for a new trial under Rule 59(f),

an

2. If that is what the “Notice of Setting” really is—

an order extending the time within which the court

will be permitted to decide the motion for a new trial

—then we must be able to decide that the clerk of the

court has the power and authority to make and enter

such an order, i.e.—assuming, arguendo, the “Notice

of Setting” was made on the court’s motion and was

intended to serve as an order extending the time with-

in which the court could decide the motion for a new

trial under 59(f), we must then ask whether the clerk

of court’s “Notice of Setting” can be said to be an

“order of the court” as required by Rule 59(1),

My review of the question forces me to conclude that

the clerk of court’s “Notice of Setting” did not and could

not have the effect of granting the extension contemplated

by the provisions of Rule 59(f). This means that under

our rules and opinions interpreting them, we cannot reach

any issues on appeal except that which concerns the trial

court’s denial of appellant’s Rule 60(b) motion.’

As noted earlier, Rule 59(f), W. R. C. P. authorizes the

granting of a continuance of up to 30 days past the orig-

inal 60 days from the entry of judgment during which addi-

tional time the trial court is permitted to rule on the mo-

‘The Rule 60 (b) issue is before us since an order on this

motion is final an pealable. However, Rule 60 (b) motions

do not extend the time limit for appeal, and appellants are

thereby precluded from attacking the underlying judgment.

Thus, any issues involving the merits of this case were not pre-

served for our review by reason of the 60 (b) motion, :

McBride v, McBride, Wyo., 598 P, 2d 814 (1979); Kennedy v.

Kennedy, Wyo., 483 P. 2d 516 (1971),

App. 67

tion, The language of the rule makes clear that the exten-

sion can only be granted by “order of the court.” In other

words, the extension-granting decision is a discretionary

matter with the court. The purpose of subdivision (f) of

Rule 59 is to expedite court business, and to insure the

finality of judgments. See a discussion of this subject in

Board of Commissioners v. Casper National Bank, 55 Wyo.

144, 96 P, 2d 564 (1939), rev. on other grounds, 105 P, 2d

578 (1940). We have held that the provisions of subdivi-

sion (f) are jurisdictional and the extension requirements

must be complied with or the judgment becomes final at

the end of 60 days, Furthermore, a written order by the

court cannot extend the time limitation after the motion

has been deemed denied by operation of law. Johnson v.

Hauffe, Wyo., 567 P. 2d 735 (1977); MeMullen v. MeMul-

len, Wyo., 559 P. 2d 37 (1977); Sun Land & Cattle Co, v.

Brown, Wyo., 387 P. 2d 1004 (1964),’

Is a “Notice of Setting” an order—and if it is an

order, is it an order extending time within which to

decide the motion for a new trial—or is it an order

ome the time for argument on the motion—or is it

oth

I have heretofore noted the entry made by the clerk

of the court at n,2, supra, On its face, the clerk’s entry

purports to set the motion hearing beyond the 60-day dead-

line conceived by Rule 59(f), Other than this, the record

reflects no action by the trial judge with respect to the

‘it is important to note that the cases above dealt with

Rule 59 or its progeny, when the rule provided not only that an

extension could be granted by order of the court, but also by

stipulation of the parties. Under the present Rule 59 structure,

an extension can only be sags by order of the court.

(Amendment, April 12, 1978.

App. 68

granting or denying of an extension of time within which

to rule on appellant’s new-trial motion. Nothing in the

record verifies the notion that the “Notice of Setting” ex-

tending the time past the 60-day limit was entered by

authority of the trial judge. Even if it could be shown

that the “Notice of Setting” has been entered by the clerk

upon the motion of the trial judge, there is still no record

indication that the entry was intended to be an order ex-

tending the time within which the motion for a new trial

could be decided as contemplated by Rule 59(f), It cer-

tainly does not say that this is what the person who au-

thorized the writing intended, All the “Notice of Setting”

says is that the argument on the motion for a new trial will

be heard by the court on the 29th of June, 1981, at 5:30

p.m. It appears to be a ministerial entry by the clerk of

the court—perhaps at the behest of the judge—telling at-

torneys when the judge will be available to hear arguments

on the motions. It does not purport to say—at least on

its face—that the judge has exercised his discretion with

respect to whether or not he will extend the time within

which he will make a decision on the granting or denial

of a new-trial motion.

For the judge to say to the clerk of court,

“Tell the lawyers to be here next Tuesday to argue

their motions,”

seems to indeed impose upon the clerk a ministerial task,

But should the judge say to the clerk,

“You decide whether or not we should grant the ap-

pellant additional time within which the motion for

a new trial will be heard, failing which it will be

deemed denied,” —

this sounds like the clerk is being delegated the court’s

discretion.

App. 69

In view of the authorities that I will refer to hereafter.

it must be assumed that the entry by the clerk was a minis-

terial task and did not—because it could not—involve ju-

dicial discretion. This assumption leads to the conclusion

that the entry was what it appears to be—a ministerial act

which told lawyers when to appear to argue the motions

and was not an exercise of such judicial discretion as would

be necessary in deciding whether or not the court would

grant a motion to extend the time for deciding the new

trial issue under Rule 59(f).

If the clerk’s entry is an order extending the time

for purposes of Rule 59(f), is it an “order of the court”

—or is it just aclerk’s order? And if it is the former

is the clerk authorized to make such an order?

Various Wyoming statutes describe the duties of clerks

of court, none of which suggest that a clerk has the power

to issue orders of the court. Section 5-3-202, W.S. 1977

describes the duties of a district court clerk as follows:

“Each clerk of the district court shall keep and make

up the records and books of the court of his particular

county, receive all cases filed therein, properly record

and attend to the same, and shall have the care and

custody of all the records, seal, books, papers and

property pertaining to his said office or the court of

the county for which he is elected and which may be

filed or deposited therein, and shall receive, account

for and pay over all money that may come into pos-

session of the court according to law, and under the

orders or decrees of the court, * * *.”

Section 5-7-101, W.S. 1977 states in general terms:

“The clerk of each of the courts shall exercise the

powers conferred and perform the duties enjoined

upon him by statute and by the common law; and in

the performance of his duties he shall be under the

direction of his court.”

App. 70

These statutes clearly contemplate that the function

served by a clerk of court is that of an administrative offi-

cer of the court whose duty it is to perform ministerial

tasks.

The general rule is said to be:

“Tn as much as a clerk of court is essentially a minis-

terial officer, as is stated in § 1 of this Title, he cannot,

without express constitutional or statutory authority

to that effect, exercise any judicial functions, and the

court, it has been held, has no power, in the absence

of statutory authority, to delegate such matters to the

clerk, although the clerk may properly perform acts

which are classified as ministerial.” (Emphasis added.)

14 C. J.S. Clerks of Court, § 35.

The rule was reiterated in Corbin v. State ex rel.

Slaughter, Fla. App., 324 8. 2d 203 (1975), where the~wourt

held a clerk of court is a ministerial officer who does not

exercise discretion in performing most of his services.

This general rule regarding the powers and the functions

of the clerk of court has been reiterated in numerous cases.

For example, in Sabbe v. Wayne County, 322 Mich. 501, 33

N. W. 2d 921 (1948) the court said:

“We have held that the duties and functions of county

clerks are purely ministerial and that judicial functions

cannot be performed by court clerks, nor may the

power to do so be conferred upon them. People v.

Colleton, 59 Mich. 573, 26 N. W. 771; Wilson v. Genesee

Cireuit Judge, 87 Mich. 493, 49 N. W. 869, 24 Am. St.

Rep. 173; Thoms v. Recorder’s Court Judge, 237 Mich.

413, 212 N. W. 69.” 33 N. W. 2d at 922.

See also, Bertagnolli Bros. v. Bertagnolli, 23 Wyo. 228, 148

P. 374 (1915) and Kimbel v. Osborn, 61 Wyo. 89, 156 P.

2d 279 (1945).

App. 71

What is an “Order of the court”?

It has been said:

“An ‘order of court’ has been defined as one made in

open court by a judge of the court who is present at

the place designated for the transaction of judicial

business and there assumes to transact such business.

A ‘judge’s order’ has been defined as one made by a

judge at chambers or out of court. Under some stat-

utes the distinction between court orders and judge’s

orders has been abolished, at least with respect to

certain courts.” (Footnotes omitted.) 60 C.J.S. Mo-

tions & Orders, § 2(b).

Another definition says:

“An ‘order’ of a court has been defined as the judg-

ment or conlusion [sie] of a court by which affirma-

tive relief is granted or denied on a motion or a spe-

cial proceeding. The word has been defined at greater

length as a decision made during the progress of a

cause, either before or after final judgment, settling

some point of practice or some question collateral to

the main issue presented by the pleadings that must

be disposed of before the main issue can be passed

on by the court or that must be determined for the pur-

pose of carrying into execution the final judgment.

Although ‘order’ has been statutorily defined as being

every direction of a court or judge made in writing

and not included in a judgment, the word ordinarily

connotes not only an order reduced to writing but also

any verbal command, direction, order of the court made

during the course of a trial.” 56 Am. Jur. 2d, Motions,

Rules, and Orders § 3 (1971) and the cases cited there-

in.

Accordingly, courts construing the term “order of the

court” have said that the phrase implies affirmative action

by the judge which is specific and limited in its applica-

tion. Loomans v. Milwaukee Mutual Insurance Co., 38

App. 72

Wis. 2d 656, 158 N. W. 2d 318, 321 (1968); Aetna Casualty

& Surety Co. v. Sampley, 108 Ga. App. 617, 134 S. B. 2d

71, 74 (1963); Puckett v. Swift & Company, Mo. App. 229

8. W. 2d 713, 717 (1950). The above authorities make clear

that the phrase “order of the court”, as utilized in Rule

59(f), contemplates some affirmative record action by the

trial court, in order that a continuance will be said to have

been granted.

In State v. Dickson, 53 Wis. 532, 198 N.W. 2d 17

(1972) the court said:

“In the instant case, there was no order of the court

which could have been disobeyed. The record shows

that Judge Traeger relied upon the document bearing

the caption, ‘Cireuit Court Chambers,’ and rubber

stamped with the name of the clerk of court. A di-

rection issued by the clerk is not an order of the court

in the sense used in legal procedures. Section 269.27,

Stats., makes it clear that orders issued ‘out of court’

may be made only by judges or, in the appropriate

cases, by court commissioners. Nowhere in the statu-

tory recitation of the powers and duties of a clerk

of court is there any grant of power to issue orders

over his own signature.

“Tt is well recognized in Wisconsin that a clerk of

court may not exercise any judicial powers. Wisconsin

Lumber & Supply Co. v. Dahl (1934), 214 Wis. 137,

252 N. W. 714, held that, in the absence of a specific

grant of power, a clerk of court could not authorize

the calendaring of cases for trial. The limitations on

the powers of a clerk of court were further defined in

Pacifie Nat. Fire Ins. Co. v. Irmiger (1949), 254 Wis.

207, 212, 36 N. W. 2d 89, 92, wherein we said:

“¢. |. the acts of the clerk of the court are minis-

terial and clerical, and he may not exercise judicial

power except in accordance with the strict language

of a statute conferring such power upon him.’

App. 73

“It is thus apparent that the clerk could not issue a

directive having the authority and dignity of a court

order and, in fact, in the instant case the clerk at-

tempted no such usurpation of power. It did not pur-

port to be au order ‘by the court.’ It was a mere no-

tice signed by the clerk and carried with it none of

the qualities of a properly issued order of a court.”

193 N. W. 2d at 22.

In Toulon v. Nagle, 67 Wis. 2d 233, 226 N. W. 2d 480,

485 the court said:

“On February 11, 1972, the parties were sent a notice

by the clerk rescheduling the motions to April 21, 1972.

The notice did not recite that the extension was by

order of the court and it failed to state any cause for

the extension. The transcript was completed on March

24, 1972, and Toulon’s motion for judgment on the ver-

dict was made on April 7, 1972, the date originally

scheduled. Nagle’s motions were not filed until April

11, 1972. Subsequent extensions were made by the

court for cause after April 21, 1972, and are not con-

tested by Toulon.

“Under this sequence of events relating to the exten-

sion of time on the filing and determination of mo-

tions, the trial court ultimately granted Nagle’s motion

for a new trial on the issue of damages with an option

to Toulon, pursuant to Powers v. Allstate Ins. Co.

(1960), 10 Wis. 2d 78, 102 N. W. 2d 393, but denied the

rest of Nagle’s motions.

“We find the decision of the trial court on the post-

verdict motions to be persuasive. Unfortunately the

record does not show that the extension granted from

April 7, 1972, to April 21, 1972, was by order of the

court for cause, as required by sec. 270.49, Stats. Loo-

mans v. Milwaukee Mut. Ins. Co. (1968), 38 Wis. 2d

656, 158 N. W. 2d 318; Anderson v. Eggert (1940), 234

Wis. 348, 291 N. W. 365; Beck v. Wallmow (1938), 226

Wis. 652, 277 N.W. 705. We determine, therefore,

that the instant order granting a new trial on the is-

App. 74

sue of damages, with option to accept a lesser amount

and denying Nagle’s other motions is ineffective and

void. Graf v. Gerber (1965), 26 Wis. 2d 72, 76, 131

N. W. 2d 863.”

These authorities are representative of the law on the ques-

tion and stand for the proposition that a clerk of court,

absent statutory authority, has no power to issue orders

over his or her own signature, and a clerk’s directive which

requires the exercise of judicial discretion is not an “order

of the court” within the contemplation of law.

In certain specific instances the clerk of court in Wy-

oming has been vested with powers of a judicial nature.

For instance, Rule 55, W.R.C. P. authorizes the entry of

default judgments by the clerk. However, in the case of

Kimball v. Osborn, supra, we held that the power of the

clerk of the court to enter default judgments as provided

by statute’ only allows the clerk to enter judgments for

fixed sums. We said that the statute does not grant to

the clerk any discretionary power and we emphasized that

the clerk’s authority is purely ministerial in character.

Kimbel v. Osborn, 156 P. 2d at 288. We said at p. 287 of

that same opinion:

“Tt is reasonably apparent from the views expressed

by the authorities reviewed above that statutes author-

izing Clerks to enter judgments in certain cases should

be strictly construed and unless the letter of the law

is complied with, as regards the power granted, the

action of such officials must be treated as void.”

In Bertagnolli Bros. v. Bertagnolli, supra, the clerk

entered a default judgment as he was authorized to do by

*Kimbel v. Osborn, supra, dealt with construction of

W. R. S. § 89-1207 (1931) which was later ig abeoy by, the

adoption of Rule 55, W.R.C.P. See: Rule 87, W.R.C. P.

App. 75

statute. But the judgment was entered at a time when

there was a demurrer to the complaint on file and which

demurrer had been filed after the statutory time for filing

the answer and other papers had expired. Thus the entry

of the judgment by the clerk had the effect of overruling

the demurrer. This was—said this court—the exercise of

a judicial function which was beyond the power of the clerk

of the court.

We said:

“The question presented in this case goes to the jur-

isdiction, for it involves the authority or power of the

clerk to act at all, in view of the fact that a demurrer

had been filed before judgment was applied for or

entered, and remained on file and undisposed of. The

question to be determined is this: Did the filing of

the demurrer after the time for answer had expired,

without leave of court or consent, but before the ap-

plication for judgment, divest the clerk of the author-

ity conferred by statute to enter the judgment? We

think it clear that unless the demurrer was «a nullity,

the clerk was not authorized to enter a default judg-

ment. Acting ministerially only, he has no power to

determine the sufficiency of an answer or other plead-

ing, either as to form or substance, or whether, if filed

out of time, it shall be allowed to remain on file. Only

the court or judge may determine those questions.

“An objection to a pleading on the ground that it was

filed out of time may be waived, and the court in the

exercise of a sound discretion may refuse to strike it

from the files and consider it as though filed in time.

Under section 4456, above quoted, the time for answer

may be extended. and section 4418 (Comp. Stat. 1910)

provides that the court, or a judge thereof in vacation,

may, for good cause shown, extend the time for filing

any pleading upon such terms as are just. If the plain-

tiff had moved to strike the demurrer from the files,

the court might have overruled the motion and allowed

é App. 76

the pleading to stand, which would be conclusive un-

less excepted to and subsequently set aside. Parker

v. Haight, 14 Ohio Cir. Ct. 548; Newsom’s Adm’r v.

Ran, 18 Ohio 240; Seymour v. Railway Co., 44 Ohio St.

12, 4 N. E. 236; Lyons v. Fidelity Lodge, 2 Wkly. Law

Bul. (Ohio) 97; Hengehold v. Gardner, 4 Wkly. Law

Bul. (Ohio) 958; Carver v. Williams, 6 Wkly. Law Bul.

(Ohio) 672. The showing necessary or sufficient to

prevent the striking from the files of a pleading filed

out of time is not involved in the question now being

presented and considered; the material point is that

the court possesses the power to determine the mat-

ter.” 148 P. at 375-376.

I see an analogy between Bertagnolli and the case at

bar. In the instant matter—if the rule of Bertagnolli is

to be followed—it must be said that the entry of the “No-

tice of Setting” was not and could not substitute for a court

order granting an exteision of time within which to decide

a motion for a new trial. If that be the case, then, there

being no extension, this court has no jurisdiction because

the notice of appeal was filed late. To say it another way,

if it be argued that the clerk’s “Notice of Setting” consti-

tuted an order extending the time within which the motion

for new trial could be considered and decided, then—under

Bertagnolli—the clerk was without authority to exercise

judicial! discretion and the entry was a nullity for this pur-

pose.

In Kimbel v. Osborn, supra, we considered this same

statute which authorizes the clerk to enter a default judg-

ment. We made the following observation as we harked

back to Bertagnolli, supra, 156 P. 21 at 283-284:

“So in Bertagnolli Brothers v. Bertagnolli, 23 Wyo.

228, 148 P. 374, 375, decided in 1915 with the law of

1905, supra, before it this Court said with reference

to the Clerk’s authority thereunder that:

App. 77

“Tt is generally held, under such a statute, that

it directs the judgment to be entered, and that

the clerk acts merely in a ministerial capacity ; and

upon that ground the validity of statutes confer-

ring such authority upon the clerk is upheld. See

Utah Ass’n, ete. v. Bowman, 38 Utah 326, 113 P.

63, Ann. Cas. 1913B, 334. The court in the case

cited, speaking of this power of the clerk, say:

“This duty is imposed by law, and the clerk has

no discretionary powers with respect thereto. His

act in entering such a judgment is no more judi-

cial or discretionary than his act in entering a

judgment upon the verdict of a jury or the find-

ing of the court would be. In either case the law

imposes the duty, and in entering the judgment

the clerk merely executes what the law requires

of him.” Hence it must appear that any judgment

so entered by the clerk was within the authority

conferred by the statute, or otherwise the judg-

ment will be void.’

“This Court’s especially significant comment in the

language quoted last above appears in the last sen-

tence thereof.”

See also: Cheshire v. First Presbyterian Church, 221 N.C.

205, 19 S. E. 2d 855 (1942); Kelone v. Kelone, La., 209 S.

2d 803 (1968). The lesson to be taken from Bertagnolli,

Kimbel and other cited cases is that even where a clerk of

court is vested by statute (or rule) with the power to enter

judgments, in doing so the clerk is only acting in a minis-

terial capacity and cannot extend that puwer to areas tra-

ditionally reserved to the judge of the court by whom the

clerk is employed. As we have noted, the judge himself

cannot delegate his powers and duties to the clerk of court.

14 C. J.S. Clerks of Court § 35, supra.

Considering these authorities, I am of the opinion that

action by a clerk of court in setting a hearing for a mo-

App. 78

tion for new trial cannot amount to an “order of the court”

granting an extension under Rule 59(f), if, by chance, the

setting places the time for argument past the 60-day limi-

tation. I would hold that in order for the Rule 59(f) ex-

tension to be granted, the trial judge is required to take

some affirmative action, clear on the record, and to issue

an order specifically stating that an extension is granted

and that the order must be filed pursuant to § 1-16-301,

W.S. 1977.’ Under the conditions expressed by Rule 59(f),

this order can be issued either by the judge on his own

initiative or at the request of the parties. Clearly such

a decision is within his discretion, but the decision is of

such a nature that the judge cannot delegate the authority

to his clerk of court. Rule 59(f) simply does not contem-

plate any action by any person or authority except the trial

judge himself since it is the judge who is charged with

ruling on the motion.

I note in passing that we left similar questions open

in Murry v. State, Wyo., 631 P. 2d 26 (1981). There we

noted:

“The record does contain a setting of the motion for

a new trial for hearing on December 4, 1980, made by

the clerk of court on November 26, 1980. Assuming

either or both of these occurrences to be valid (oral

granting of continuance by the district judge without

a contemporaneous record thereof or granting of a

continuance by the clerk of court), * * *.” 631 P. 2d

at 28,

7§ 1-16-301 provides in pertinent part:

“All judgments and orders must be entered in the journal

of the court and specify clearly the relief granted or order

made in the action. * * *”

App. 79

and expressed doubt as to whether or not an oral pro-

nouncement or setting by the clerk would satisfy the ex-

tension provision of Rule 34, W. R. Cr. P.

The appeal on the merits should be dismissed because

there is no “order of the court” in the record which grants

an extension within which to determine the new-trial mo-

tion. The motion was deemed denied within 60 days of

the judgment which date was June 26, 1981. Since the

notice of appeal was not filed until July 23, 1981, it was

not, therefore, filed in accord with Rule 2.01, W. R. A. P.,

and the untimely filing of a notice of appeal has hereto-

fore been held to be jurisdictional. Murry v. State, supra;

State v. Berger, Wyo., 600 P. 2d 708 (1979) ; Snell v. Rup-

pert, Wyo., 541 P. 2d 1042 (1975); Rutledge v. VonFeldt,

supra at n. 3.

In my judgment, the only issue available for our re-

view concerns the denial of appellant’s Rule 60(b), W. R.-

C.P. motion. I would hold that a review of the briefs

precludes discussion of the trial court’s denial of the Rule

60 motion since appellants have failed to cite any cogent

authority for their position. For that reason I would not

address the issue. Elder v. Jones, Wyo., 608 P. 2d 654

(1980); Merritt v. McIntyre and McIntyre Garden Center.

Wyo., 613 P. 2d 206 (1980).

I would add this caveat: The majority of the court

have resolved to decide this case on its merits in spite of

what I couasider to be a civar jurisdictional defect. This

says to me that the majority will dismiss some appeals

where the appeal requirements are jurisdictionally defec-

tive but, if it suits their fancy, will refuse to dismiss other

appeals even though the record reflects a jurisdictional

App. 80

imperfection. This is patently unfair to all of those who

have felt the sting of this court’s prior orders of dismissal.

For me, the majority’s decision to decide this case on its

merits has the effect of discarding our long-standing rule

that a late notice of appeal automatically deprives the

Wyoming Supreme Court of jurisdiction.

Thus, I regret all of the votes I have cast in the past

for the dismissal of appeals upon the grounds that the

Wyoming Rules of Appellate Procedure have not been

complied with, and I cannot again vote, as I have for nearly

eight years, to automatically deny an appellant his right

to the appellate processes in this court due to the failure

to timely comply with a rule of appellate procedure. I

will, hereafter, consider each excuse for a late appellate

filing upon its merits—just as the majority has done in

this case.

App. 81

APPENDIX D

IN THE SUPREME COURT

STATE OF WYOMING

No. 5576

RUTH BLAKE and LOUIS DEKMAR,

Appellants

(Defendants),

vs.

THOMAS N. RUPE,

Appellee

(Plaintiff).

PETITION FOR REHEARING

COMES NOW Thomas N. Rupe, Appellee in Case No.

5576 and Appellant in Case No. 5577, by and through his

attorneys, Jones, Jones, Vines & Hunkins, and Petitions

this Court for a rehearing pursuant to Rule 8.01, W.R.A.P.

The points which Mr. Rupe wishes to raise relate to See-

tion V of the Court’s majority opinion relating to the lia-

bility of Louis Deckmar and are briefly stated as follows:

1. Is the qualified immunity of the Defendant Dekmar

which was found to exist by this Court an affirmative de-

fense required by Rule 8(c), W. R. C. P. to be affirmatively

set forth by the party claiming it in its pleadings?

2. Which party has the burden of proof on the ques-

tion of the qualified immunity found to exist for the De-

fendant Dekmar?

3. Does the finding of a jury, upon proper instruc-

tions that a defendant is liable for punitive damages, con-

tain an implicit finding that that defendant was not acting

App. 82

in good faith in taking the actions which damaged the plain-

tiff?

4. When an appellate court finds an affirmative de-

fense to exist which was never raised by the defendant in

the pleading, and of which the plaintiff was never properly

informed, does the order of that court reversing the judg-

ment below without affording the plaintiff an opportunity

to present evidence on the issue of the affirmative defense

deny the plaintiff due process of law, as required by the

Constitutions of the United States and of the State of

Wyoming?

Dated this 28th day of September, 1982.

/s/ Erie M. Alden

Jones, Jones, Vines & Hunkins

Attorneys for Appellee

P.O. Drawer 189

Wheatland, Wyoming 82201

CERTIFICATE OF SERVICE

I hereby certify that I mailed a true and correct copy

of the foregoing PETITION FOR REHEARING to David

A. Kern, Wyoming County and Prosecuting Attorney’s

Association, Suite 413, County Building, Cheyenne, Wy-

oming, 82001; James E. Fitzgerald, 710 Rocky Mountain

Plaza, Cheyenne, Wyoming, 82001; Wood, Ris and Hames,

1100 Denver Club Building, Denver, Colorado, 80202; and

Hirst & Applegate, 200 Boyd Building, Cheyenne, Wyo-

ming, 82001, with proper United States postage thereon,

this 29th day of September, 1982.

/s/ Erie M. Alden

App. 83

APPENDIX E

IN THE SUPREME COURT, STATE OF WYOMING

October Term, A.D. 1982

No. 5576

RUTH BLAKE and LOUIS DEKMAR,

Appellants

(Defendants),

vs.

THOMAS N. RUPE,

Appellee

(Plaintiff).

No. 5577

THOMAS N. RUPE,

Appellant

(Plaintiff),

vs.

RUTH BLAKE and LOUIS DEKMAR,

Appellees

(Defendants).

ORDER DENYING REHEARING

After careful consideration, it is

ORDERED that appellee Rupe’s Petition for Rehear-

ing in the above-entitled cases be, and is, denied.

October 5, 1982.

By the Court

/8/ Robert R. Rose, Jr.

Chief Justice

App. 84

APPENDIX F

THE DISTRICT COURT OF THE EIGHTH JUDICIAL

DISTRICT OF THE STATE OF WYOMING

IN AND FOR CONVERSE COUNTY

Civil Action No. 8360

THOMAS N. RUPE,

Plaintiff,

vs.

BOARD OF COUN'TY COMMISSIONERS OF THE

COUNTY OF CONVERSE; BUD TURNER, JOHN

R. PEXTON, GORDON W. TAYLOR, JR., constitut-

ing said Board in their officia! aud individual capaci-

ties; RUTH BLAKE; LOUIS DEKMAR; and DALE

FRANCIS,

Defendants.

ORDER AND JUDGMENT ON MANDATE

(Filed October 20, 1982)

The Supreme Court of the State of Wyoming having

considered an Appeal in this cause from the Judgment On

Jury Verdict entered on 25 April 1981 by this Court and

said Supreme Court having issued its Mandate on Reversal

dated 6 October 1982, in which the Court said in part:

“This cause having been heretofore taken under

advisement, and the court, being now fully advised in

the premises, does say and find that there is error in

the record of the proceedings of the District Court of

Converse County.

“It is therefore ordered and adjudged, for the

reasons stated in the opinion herein this day delivered

App. 85

and filed, that the judgment of said district court be,

and the same is hereby, reversed and the case re-

manded to said district court with directions to vacate

the judgment in favor of appellee Rupe and enter judg-

ment for appellants Blake and Dekmar.

“It is further ordered the appellee in Case No.

5576 and appellant in Case No. 5577 bear the costs of

these appeals.

COSTS IN THE SUPREME COURT: ‘Transcript,

$1,030.05 ; docket fee, $25.00; briefs of appellant Blake,

$48.00; briefs of appellant Dekmar, $37.50.

NOW, THEREFORE, You are commanded with-

out delay to carry into execution and effect the within

and foregoing judgment of our said Supreme Court.”

Now upon the mandate of the Supreme Court of the

State of Wyoming, dated 6 October 1982,

IT IS ORDERED, ADJUDGED AND DECREED,

that the Judgment of this Court entered herein on 25 April

1981 be, and the same is hereby, vacated and set aside;

and,

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED, that the Plaintiff, Thomas N. Rupe, take noth-

ing by his Complaint against Defendant, Ruth Blake and

Louis Dekmar; that his Complaint, together with all causes

of action asserted therein, be, and the same hereby are,

dismissed.

IT IS FURTHER ORDERED AND ADJUDGED

that the Defendants recover from the Plaintiff their costs

of One Thousand One Hundred Forty Dollars and Fifty-

Five Cents ($1,140.55) incurred in the Supreme Court and

taxed in the Mandate thereof.

App. 86

IT IS FURTHER ORDERED AND ADJUDGED

that the Defendants recover from the Plaintiff their costs

of action incurred in the District Court herein.

Dated this 18th day of October 1982.

Paul T. Liamos, Jr.

District Judge