Allen v. Lewis

Decision Date11 January 1919
Docket Number925
PartiesALLEN v. LEWIS
CourtWyoming Supreme Court

APPEAL from District Court, Washakie County; HON. P. W. METZ, Judge. Action by A. T. Allen against W. O. Lewis.

From an order granting plaintiff a new trial, defendant appeals.

Affirmed.

Charles H. Harkins and Lonabaugh & Wenzell, for appellant.

On September 14th, twenty-eight days after the date of the filing of plaintiff's specifications of error, the judge assumed to pass upon the record and grant a new trial; the inquiry involves the question of the jurisdiction of the trial court to make such an order more than twenty days after the filing of the specifications in error; secondly, the propriety of granting a new trial; our statute on direct appeals apparently differs from similar statutes in other states in that it authorizes the trial court to grant a new trial before the case goes to the Supreme Court, and we assume no decision will be found in interpreting this provision of our statute; appellate procedure is statutory and may not be enlarged by construction. (2 Enc. P. & P. 16.) Nor jurisdiction conferred by consent. (Dailey v. Anderson, 7 Wyo. 1; Reardon v. Norton, 16 Wyo. 363; Burris v. R. R., 14 Wyo. 498; Cantlin v. Miller, 13 Wyo. 109; Boner v. Fall River, 168 P. 726.) The statute has fixed a period of fifteen days after the filing of specifications of error within which the trial court may review the record. If the judge may take longer than the time specified, the language of the act is set aside, and its whole purpose frustrated. The specifications of error are so general, that it is difficult to determine the ground upon which new trial was granted unless it be upon the principle of res judicata. Plaintiff seeks to enjoin defendant from building a ditch and flume across his land. Defendant claims a right of way, and plaintiff by reply pleads in bar the judgment in a formal trial. The question of an executed parol license and adverse enjoyment is claimed by plaintiff, and the following authorities are relied upon: Quinlan v Noble, 75 Cal. 250, 17 P. 69; Long Ir. 2nd Ed. Sec. 62; Tallman v. Casey, 15 Ore. 83, 13 P. 669; Coventon v. Seuvert, 23 Ore. 548, 32 P. 508. A parol license cannot be revoked after licensee has expended money or labor in making improvements. (Bowman v. Bowman, 57 P. 546, 15 R. C. L. 491; Gustin v. Harding, 20 Wyo. 1; Shaw v. Prophet, 109 P. 584; Flickenger v. Shaw, 25 P. 268; Ewing v. Rhea, 62 P. 790; Stoner v. Zuckner, 83 P. 808; McBroom v Thompason, 37 P. 57; Maple Grove Co. v. Marshall (Utah), 75 P. 369; Long on Irr. 2nd Ed., Sec. 225.) The doctrine of res judicata has no application in this case under the facts. The true requirement is that the two suits shall be the same, between the same parties, and that points in issue in former suit cannot be retired. (23 Cyc. 1156; Cromwell v. Sac Co., 94 U.S. 351, 24 L.Ed. 1950. Black Judgments 504; Freeman Judgments 249.) Another test is whether the same evidence will sustain both the present and former action. (Freeman Judgments 259. Stone v. U.S. 64 F. 667.) The former action was for damages in cutting and carrying away alfalfa. There was no question of land or right of way involved. The result was not decisive of the present case. (Black Judgments 619-617; 23 Cyc. 1172, 1313, 1304; Freeman Judgments 271-272.) The record cannot be contradicted. (Freeman Judgments 275-625.) No estoppel can be shown as to matters not within the pleadings. (Black Judgments 618.) Parol evidence may be introduced to show what was involved in the former case. (Black Judgments 625; Lillis v. Ditch Co., 27 P. 780.) But it must be shown that the judgment involved the determination of some facts. (Freeman Judgments 274.)

H. W Rich, for respondent.

There was a stipulation by the parties that the cause might be reargued on September 12, 1917, and that the court might thereafter, upon consideration, enter its order overruling or sustaining the specifications of error. Reargument was had and on September 14th the court sustained specifications of error and granted a new trial. The question is whether the trial court may modify its order, so as to make the record speak the truth. Counsel for appellant apparently seeks to evade the effect of their stipulation. The trial court may amend its record. (Borrego v. Territory, 46 P. 349.) And may make nunc pro tunc entries to supply omissions. (Wright v. Nicholson, 134 U.S. 137; Kelley v. U.S. 27 F. 616; Fay v. Stubenrauch, 75 P. 174.) A mistake may be corrected. (People v. Murback, 30 P. 608.) It is error to refuse to amend a record in such cases. (Pleyte v. Pleyte, 24 P. 579 (Colo.).) The doctrine of res judicata applies. The ownership of the land, adverse possession, and the location of the boundary line between the lands was placed in issue by the pleadings in the former case and necessarily passed upon in the determination thereof. (Graham v. Culver, 3 Wyo. 639; Black Judgments 505.) The case of Warwick v. Underwood, 75 Am. Dec. 767, is directly in point; also Johnson v. San Francisco Union, 7 A. S. R. 129, 75 Cal. 134; Furneaux v. Bank (Kan.), 7 A. S. R. 541.) It was competent to show by parol evidence what was involved in the former suit between these parties. (Herschbach v. Cohen, 99 A. S. R. 233, 169 N.E. 932, 21 A. & E. Enc. 244; Hawk & Co. v. Evans, 14 A. S. R. 248, 76 Iowa 593.) It was incumbent upon defendant in the former case to present every defense he had. (Lorillard v. Clyde, 122 N.Y. 41, 19 A. S. R. 470; Harmon v. Auditor, 123 Ill. 122, 5 A. S. R. 502; Gould v. Sternburg, 13 A. S. R. 138; Haley v. Ano, 136 N.Y. 569, 32 A. S. R. 764.) The question of title may be tried in a trespass action where put in issue by the pleadings. (Watson v. Richardson, 80 N.W. 416, 80 A. S. R. 331; Hunter v. Holt, 21 A. S. R. 73; Flippen v. Dickson, 83 Tex. 421, 29 A. S. R. 653; Dodd v. Scott, 25 A. S. R. 492; Freeman v. McAninch, 47 A. S. R. 79; Chicago Co. v. Barrett, 96 N.E. 795, 15 Stand. Ency. of Proc. 545.)

POTTER, JUSTICE. BEARD, C. J., concurs. BLYDENBURGH, J. , being ill, did not participate in the decision.

OPINION

POTTER, JUSTICE.

This action was brought in the District Court of Washakie county by A. T. Allen as plaintiff against W. O. Lewis as defendant, and upon a trial to the court without a jury judgment was rendered in favor of the defendant. Thereupon plaintiff filed and served notice of appeal, caused a record on the appeal to be prepared, and filed and served specifications of error, the latter appearing to have been filed with and as part of the record on August 17, 1917. Upon consideration of said specifications of error and a review of the record a new trial of the cause was granted by the district court on September 14, 1917, and thereupon the defendant filed and served notice of appeal, and the case is here upon that appeal from the order granting a new trial.

1. The first point urged in appellant's brief as ground for reversal is that the district court was without jurisdiction to grant a new trial at the time the order therefor was made, for the reason that it was after the time limited by statute for the granting of a new trial by the district court upon a consideration of the specifications of error and a review of the record on appeal. The statute authorizing the transfer of a cause to this court for review by direct appeal, so-called (Laws 1917, Ch. 32), provides in section 10 that the clerk of the district court shall, within five days after the specifications of error are filed in his office, notify the judge of the district court before whom the action was tried, in writing, that the record on appeal in the cause is perfected and on file in his office, and that it shall thereupon became the duty of such judge, within fifteen days after receiving such notice, to review the record on appeal and consider the specifications of error, and if he shall determine that the party appealing is entitled to a new trial of the issue he shall make and enter an order granting it, whereupon the record shall remain with the clerk of the district court for trial in that court, unless the respondent shall appeal from the order granting a new trial, in which event the record on appeal as perfected shall constitute the record on appeal in the cause. It is further provided in the same section, that if the district judge shall neglect or refuse to grant the appellant a new trial within twenty days from the date of the filing of the specifications of error the clerk shall thereupon transmit to the clerk of the supreme court the record on appeal and the specifications of error; and that in case the district judge shall, "within the time limited by this act", grant the party appealing a new trial and the other party shall appeal from such order, the clerk shall attach to the record on appeal, as prepared, said order and forthwith transmit the whole of such record to the clerk of the supreme court, and the party so appealing from the order granting a new trial shall be designated appellant and the opposite party respondent.

In preceding sections of the statute provision is made for taking an appeal from a judgment or order of a district court by filing and serving a notice to that effect within ten days from the entry of the judgment or order appealed from and for preparing and filing with the clerk of the district court a record on the appeal within a specified time which may be extended by the court or judge for cause shown, and for serving and filing with the clerk of the district court specifications of error within a stated time after the record is prepared and filed.

Complying with the provisions of section 10 aforesaid, prescribing what shall constitute the record when an appeal is taken from an order granting a new trial...

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