Allen v. Houn

• Decision Date: 02 October 1923
• Docket Number: 1046
• Citation: 30 Wyo. 186,219 P. 573
• Parties: ALLEN v. HOUN
• Court: Wyoming Supreme Court

219 P. 573

30 Wyo. 186

ALLEN v. HOUN

No. 1046

Supreme Court of Wyoming

October 2, 1923

APPEAL from the District Court, Fremont County; CYRUS O. BROWN Judge.

On petition for rehearing; for former opinion, see 29 Wyo. 413 213 P. 757.

Rehearing Denied.

Bryant S. Cromer, for plaintiff and respondent.

A. C Allen, for defendant and appellant.

POTTER, Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

On April 2, 1923, this case was disposed of upon its merits by a decision affirming the judgment appealed from. On April 30, 1923, a petition for rehearing was filed in the cause. That was within the time prescribed by our rules for an application for rehearing, our rule 23 providing that the application shall be "by petition to the court, signed by counsel, briefly stating the points wherein it is alleged that the court has erred," and that "such petition shall be filed within thirty days after the decision is rendered and shall be accompanied by a brief (five copies of which shall be filed) of the points and authorities relied on in support thereof." The said petition includes, as part of the alleged grounds for rehearing, a statement of certain legal propositions which might have been accepted as a brief in support of the petition, considering the paper as a combination of petition and brief, although entitled only as an application for rehearing. And we think it may have been so intended. Only one copy of the paper, however, was filed, failing, therefore, to comply with the rule requiring the filing of five copies of the brief within the specified time, and therefore the petition, as filed, was not entitled to consideration. Tuttle v. Rohrer, 23 Wyo. 305, 318, 153 P. 27, 149 P. 857. See also Bank of Chadron v. Anderson, 6 Wyo. 518, 536, 49 P. 406; 48 P. 197; Dean v. Oil Co., 21 Wyo. 133, 128 P. 881, 129 P. 1023.

The rule aforesaid provides further that there shall be no oral argument on the petition for rehearing unless such argument is requested by the court, and, conforming to our established practice, the said petition in this case was taken under advisement upon our attention having been called to it by the clerk, on May 1, 1923, which date preceded by one day the expiration of the time for filing a petition for rehearing in the case. Our attention was then also called to a request in the closing paragraph of the petition for sixty days additional time in which to file appellant's brief "containing grounds for a rehearing," and a stipulation of opposing counsel consenting thereto attached to the petition. Said request was based upon the grounds, stated in said closing paragraph of the petition, that appellant's attorney was then engaged in the preparation of briefs and abstracts in a number of other causes pending in this court, which had been advanced for hearing, and "that in view of the great amount of work involved in the preparation of briefs and abstracts" in said cases, "it will be impossible for attorney for appellant herein to prepare additional briefs for rehearing in the above entitled cause unless such additional time be granted by this court."

Our rules make no provision for an extension of time for an application for rehearing or for filing the required brief in support thereof, and no such practice has been established here. Bank of Chadron v. Anderson, supra; Dean v. Oil Co., supra. Having in mind, when the petition for rehearing was taken under advisement as aforesaid, that there was no provision of statute or rule or any precedent in our practice for extending the time for filing a petition for rehearing or brief in support thereof, we did not then grant the request for an extension, not caring to establish such a practice or precedent for it, though no order was then made concerning the matter. And we remain disinclined to grant such a request, especially in the absence of any showing of "unavoidable casualty or overwhelming necessity" which might justify the suspension of a rule of the court to avoid manifest injustice. See Cronkhite v. Bothwell, 3 Wyo. 739, 31 P. 400; Phillips v. Brill, 15 Wyo. 521, 90 P. 443; Whiting v. Straup, 15 Wyo. 530, 90 P. 445; Fried v. Guiberson, 28 Wyo. 208, 201 P. 854. And clearly the showing here does not disclose any such misfortune or necessity as to justify a suspension of the strict operation of the rule. Indeed, we see nothing in the reasons stated for the requested extension that should have prevented the filing, within the time specified by the rule, of a sufficient number of copies of the petition to comply with the rule, so far as it might be considered as a brief.

While we might properly deny a rehearing of this cause upon the ground alone that the petition is not entitled to consideration, we are not inclined to do that without stating our very strong conviction that the cause was correctly disposed of by the former opinion and enlarging somewhat upon the reasons for that conclusion. In the examination necessary to determine the standing of the petition for rehearing, we could not escape noticing the points stated as legal propositions challenging the correctness of our conclusion. And they seem to us to be so clearly based upon a misunderstanding of the character of this action and the nature and effect of our statutory actions for the recovery of the possession of real property as to justify an elaboration of our views respecting the question of practice presented, which involves also a substantive right--a right of action--and has seldom been before this court for discriminative consideration.

The first ground stated in the application for rehearing is that the court failed to consider the case of Jenkins v. Jeffrey, 3 Wyo. 669, 29 P. 186, and the second that the court failed to consider the case of White v. Veitch, 197 P. 983 (27 Wyo. 401). The citation of the last mentioned case in the former opinion clearly shows that it was considered, especially since the justice who wrote the opinion in this wrote also the opinion in that case. The fact that Jenkins v. Jeffrey was not referred to in the former opinion, though cited in appellant's brief, is not to be taken as evidence that it was not considered. If the court's failure to refer in an opinion to all of the cases cited should be deemed ground for rehearing, much additional labor would be thrown upon the court, and it would be an argument for long rather than short opinions. We do not doubt, however, the right of counsel, in a petition for rehearing, to call attention to the fact that a decided case of this court clearly in point, or an authoritative case decided elsewhere, has or seems to have been overlooked. But the facts are that the case of Jenkins v. Jeffrey was considered and was well known to the court independently of its citation in counsel's brief, and it was not mentioned in the opinion because not deemed sufficiently in point upon the question presented and discussed. So far as in point, it was and is believed to be opposed to appellant's contentions. That the court failed to consider Section 6396, C. S. 1920, a section of the civil code, in the chapter containing general provisions concerning its application, is stated as the 5th ground. That section has only a distant application, if any, and none, in our opinion, favorable to appellant's contention. But our view concerning its effect upon the principal question in this case will be stated in discussing that question.

The question submitted by the legal propositions stated as the remaining grounds for rehearing is the same question considered in disposing of the cause by the former opinion, and we might decline to again consider it in this case, except for reasons above stated. It was presented in the District Court, by a motion to dismiss the petition, at the conclusion of the evidence upon the trial of issues raised by the pleadings involving the right of the plaintiff to the possession of real property held in possession by defendant under a written lease from the plaintiff for a term of years. That term had not expired by the lapse of time, but plaintiff alleged that it had been declared forfeited by him, as expressly permitted by the lease, for defendant's violation of certain of its conditions; and defendant admitted by his answer the execution of and his entry under the lease, plaintiff's ownership in fee, and the giving of the alleged notice of forfeiture and to quit the premises, but denied that plaintiff was entitled to possession, and, specifically as well as generally, that defendant had violated any covenant or condition of the lease.

The grounds of that motion may be stated as disclosing the contention here: 1. That plaintiff's petition and the evidence in its support describes lands of which plaintiff claims to be the owner and entitled to the immediate possession; and the petition alleges a lease with defendant by which he agreed to farm and cultivate said lands for an interest or share in the crops produced thereon. 2. Defendant, in his answer and the evidence in support thereof, admits plaintiff's ownership of the lands, and his (defendant's) entry upon said premises under said lease. 3. That plaintiff asks that the lease be forfeited and cancelled on the ground that defendant failed to keep and perform certain agreements and covenants therein contained. 4. That defendant claims possession solely by virtue of the lease and denies that he has failed to keep and perform all the covenants in the lease. 5. That this is an action for possession and not one involving title, and, therefore, "is an action in forcible entry and detainer and a special proceeding under which the District Court has no original jurisdiction."

The evidence is not in the record, but the parties were...