ON MOTION FOR LEAVE TO AMEND On March 13, 1934, the appeal was dismissed because the record failed to show service of the notice of appeal. 30 P.2d 490. On March 21, appellant filed a motion for leave to amend the record by filing proof that the notice of appeal was served in time by registered mail. We assumed that the affidavit accompanying the motion stated facts showing such service, but it failed to show that proof of service was filed with the clerk of the district court, and for that reason the motion, on March 27, 1934, was denied without written opinion. We need not say whether or not there were other reasons for denial of the motion. The record was returned *Page 35 to the District Court on April 14, 1934. On April 16, the clerk received from appellant a stipulation signed by counsel for both parties showing that service of notice of appeal was made in time, and a certificate of the clerk of the district court which we assume is sufficient to show that proof of service was filed with him on April 14.
In Mitter v. Black Diamond Coal Co., 28 Wyo. 439,446-447, 206 P. 152, we said: "While we are of opinion that the record on appeal should contain the notice of appeal, filed within ten days, and also evidence of its service within that time, these two things need not appear by the same paper, and proof of service may be filed after the ten days if it be in time to become properly a part of the record on appeal."
Proof of service, "to become properly a part of the record on appeal," should be filed not later than the time when the record for the appeal is prepared and certified by the clerk of the district court. The record on appeal in the case at bar contained no proof of service, and our order of dismissal on that ground cannot be changed on a showing that such proof was filed too late to become a part of the record. As the case in this court is at an end, the stipulation and certificate now proffered need not be filed.
A word of caution may be added. The rule stated in the Mitter case allows a much longer time than actually required for filing the proof of service. Such a liberal rule finds justification, perhaps, in the assumption that ordinarily the respondent will not be prejudiced, nor the perfecting of the appeal delayed, by delay in filing the proof if it be filed in time to become a part of the record. There would be no harshness in a rule requiring the proof to be filed within a reasonable time after service. In most cases the proof of service is attached *Page 36 to or endorsed on the notice and filed within the ten days allowed for serving and filing the notice. In the future, if it should appear that a respondent has been prejudiced by failure to file the proof within a reasonable time after service, we may hold that the delay is fatal to the appeal.