ON PETITION FOR REHEARING An order has been entered denying the petition for rehearing in this case. That petition, in large measure, undertook to reargue the same points previously submitted to *Page 21 the court. It was, however, suggested that in our opinion herein, one of the previous decisions of this court had been overlooked, as well as some provisions of law relative to the matters considered. The case of Underwood v. David, 9 Wyo. 178, is said to be at variance with our conclusion in the instant case. But in this we think plaintiff in error is mistaken. There this court was asked to review an order made by the District Court, vacating a former order confirming a sale to Underwood upon an execution issued upon a judgment rendered in the case. This action was taken by the trial court by reason of a protest filed in behalf of the defendants in error. Both orders merely recited that the matter was heard upon a protest against the confirmation of the sale, but were altogether silent — to quote the language of that opinion — "regarding the nature of the protest and objections to confirmation." There was no bill of exceptions. It was urged then, as now, that the record proper disclosed all that was required for a determination of the questions presented by the petition in error. But the decision was against this contention, the only point determined appearing in the following language of the opinion:
"It appearing affirmatively that the hearing was had, and the order complained of made and entered, upon consideration of a written protest not in the record, we cannot say that the decision was founded alone upon the record proper. Again, without the protest, this court must remain unenlightened as to the matters which entered into the determination of the court below, and as to the points or questions really decided."
The view thus expressed is in entire harmony with what we have heretofore said in the case at bar. Even if we assume that the order appealed from is properly before us, an inspection of that order shows merely that it was made upon the presentation of a motion to quash the execution, but contains nothing indicating the grounds upon which the motion was based. Neither do the grounds of objection *Page 22 of plaintiff in error to the order appear therein. See Section 5866, W.C.S. 1920.
It is true that some general language was used in the Underwood case to the effect that an execution is a part of the record proper, but the section of the statute governing the matter which is cited immediately following this language and with which it must be construed, would appear to have reference only to the record made by the clerk in the execution docket of the sheriff's endorsements on the execution, which the statute (Sec. 5975, W.C.S. 1920) says "shall be held to be a part of the record of the court." Even whether the word "record" as used in the clause last quoted, refers to the legal record of the case, as defined by Section 5903, W.C.S. 1920, or merely the general court records, such as the dockets, is not altogether clear, for we find the texts on Ohio practice — the state from which all these statutes were borrowed — declaring that the complete record of the case closes with the final judgment. And this, of course, was the rule at common law. In Kinkead's Ohio Civil Procedure, Sec. 192, it is said:
"The record is a memorial or history of what has been done in the case from its commencement, the issuance of the summons, until final judgment is rendered, copied by the clerk into a book called the complete record."
The solution of these problems was not attempted in the Underwood case, nor is it necessary here.
Our attention has been directed also to Section 5542, W.C.S. 1920, but we are unable to see that it has any bearing upon the matter in hand, as it simply enumerates the list of books which it is the duty of the clerk of court to keep. It does not purport to discuss what shall constitute the legal record of a cause.
The judgment in the case at bar appears to be in the alternative, and, as heretofore remarked, has become final and binding upon the parties. What has been done by them in obedience to, or in disregard of it, does not appear. *Page 23 It is said that the preceding order of the court, made August 14, 1926, directing the issuance of an execution for the value of the property, unless otherwise ordered by the court, is conclusive. But the order under review is later in point of time and is in effect contrary to the earlier one. What was presented to the court below, under the motion to quash, which produced an order at variance with its former ruling, yet apparently endeavoring to follow the final judgment, we have no means of knowing, as the motion is not before us by a bill of exceptions as it should be. The order attacked recites merely a reason which actuated the trial court in reaching the determination set forth therein. It has sometimes happened that a wrong reason is advanced to account for a correct result. The facts presented on the hearing of the motion to quash may have fully justified the lower court's pursuing the course it did.
That an accurate conclusion may be reached here, it is imperative that this court have the situation as it was presented to the District Court properly brought before it. We are quite as anxious as the parties themselves to determine all matters submitted to us in accordance with the law and to reach a just result. We do not, however, believe that any hardship will be produced by the requirement that motions of the character now under consideration should be incorporated in a bill of exceptions when proceedings in error are instituted. But if that method should not be deemed satisfactory by litigants, there is, of course, the direct appeal mode of securing a review where a bill of exceptions is never required.
Entertaining these views, in our judgment the order denying the petition for rehearing was correct and should stand.
BLUME, C.J., and KIMBALL, J., concur. *Page 24