Anderson v. Englehart

Citation105 P. 571,18 Wyo. 196
Decision Date20 December 1909
Docket Number615
PartiesANDERSON v. ENGLEHART
CourtUnited States State Supreme Court of Wyoming

ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.

Heard on motion to dismiss. The facts are stated in the opinion.

Motion to dismiss denied.

There is no authority in the Code for a new trial after determination of a motion to dissolve a temporary injunction. The proper practice, we believe, would be to ask leave to renew the motion if another hearing should be desired. A motion which does not ask a decision as to a fact arising upon the pleadings is not the subject of a new trial. Therefore, none was necessary as a prerequisite to a review of the order denying the motion. (Bank v. Swan, 3 Wyo. 356; Seibel v. Bath, 5 Wyo. 409; Perkins v. McDowell, 3 Wyo. 328; 29 Cyc. 757.) An order denying a motion to dissolve a temporary injunction is appealable. (2 Cyc. 598; Burke v. Ry. Co., 45 O. St. 631; Atwood v. Whipple, 48 O. St. 308.) Our statute recognizes but does not define a special proceeding, as was said in Porter v. State (Wyo.), 92 P. 386, but in view of the nature and effect of the injunction, and the order refusing to dissolve it, we think that the order was made in a special proceeding, within the meaning of the Code, and it clearly affected a substantial right of the plaintiff in error.

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

W. M. Englehart brought an action in the District Court in the County of Carbon against J. F. Anderson to recover the amount alleged to be due upon certain promissory notes and to foreclose a mortgage upon certain real estate given to secure said notes. In a separate cause of action the petition alleges that the defendant threatens to remove certain fixtures from the mortgaged premises which are alleged to constitute a part of the realty and to be covered by the mortgage, and it is prayed that a temporary injunction issue restraining the defendant from detaching or removing the said fixtures, and that upon the final hearing of the case the injunction be made perpetual. A temporary injunction was issued at the commencement of the action, without notice of the application therefor to the defendant, and an undertaking as required by statute in the amount fixed by the judge upon allowing the injunction appears to have been executed and filed. The cause was commenced, the injunction issued and the undertaking executed and filed on June 1, 1909. On the following day, viz.: June 2, 1909, the defendant filed a motion to dissolve the temporary injunction, and after notice to the plaintiff said motion was heard by the court on June 10, 1909, upon the petition and papers upon which the injunction was issued and affidavits presented by the respective parties, and on the same day the court overruled the motion and ordered that the injunction be continued until the final hearing of the case, to which the defendant excepted, and within the time allowed for that purpose he presented and had allowed his bill of exceptions. Thereupon the defendant Anderson instituted this proceeding in error for the review of the order denying the motion to dissolve the injunction.

The plaintiff below, defendant in error here, moves to dismiss the petition in error and the proceedings thereon for two reasons: 1. That a motion for a new trial was not made in the District Court. 2. That the order sought to be reviewed is not a final order and therefore not appealable. Our Rule 13 provides that nothing which could have been properly assigned for a new trial in the court below will be considered in this court, unless it shall appear that the same was properly presented to the court below by a motion for a new trial, and that such motion was overruled and exception was at the time reserved to such ruling; all of which shall be embraced in the bill of exceptions. The rule does not apply where a review is sought of an order such as is here complained of. Under the statute a new trial is the reexamination of an issue of fact, after verdict of a jury, report of a referee or master, or decision by the court. (Rev. Stat. 1899, Sec. 3746.) As held in the case of First National Bank v. Swan, 3 Wyo. 356, 23 P. 743, a new trial as thus defined refers to a re-examination of an issue of fact on the pleadings where a fact or conclusion of law is maintained by one party and controverted by the other. In that case it was held that a motion for a new trial was not necessary for the consideration on error of an order made upon a motion to discharge an attachment, and the court said: "The action of a court in hearing and determining a motion to discharge an attachment is not, in a strictly legal sense, a trial, and therefore the action of the court may be reviewed on error, * * * although a motion for a new trial was not made below." The proceeding and hearing on a motion to discharge an attachment is in this respect analogous to a motion and a hearing thereon to dissolve a temporary injunction, and the same principle applies.

Is the order complained of reviewable? The statute provides: "An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right in a special proceeding, or upon a summary application in an action, after judgment, is a final order which may be vacated, modified or reversed, as provided in this chapter." (Rev. Stat. 1899, Sec. 4247.) "A judgment rendered or final order made by the District Court may be reversed, vacated or modified by the Supreme Court, for errors appearing on the record." (Id., Sec. 4249.)

Construing these provisions, this court has held that an order dissolving or sustaining an attachment, when made by a court, is a final order reviewable on proceedings in error instituted before judgment in the action wherein the attachment issued. (Bank v. Moorcroft Ranch Co., 5 Wyo. 50, 36 P. 821.)

It has also been held that an order of court appointing a receiver in an action to foreclose a mortgage, and an order denying the motion of a defendant holding a senior mortgage to vacate the prior appointment and to appoint a receiver in his own behalf, are final orders subject to review on error, on the ground that the appointment of a receiver is a special proceeding, and such appointment or the vacation of a receivership may affect substantial rights. (Anderson v. Matthews, 8 Wyo. 307, 57 P. 156.) In so holding, the court in both cases above cited followed the Ohio decisions upon the subject, our code provisions having been taken from the statutes of that State. If the principle of those cases be adhered to and followed, it would seem necessary to hold that an order either sustaining or denying a motion to dissolve a temporary injunction, that is to say, one that has been allowed pendente lite, is also a final order within the meaning of the code provision defining that term. And it is so held in Ohio. (Burke v. Ry. Co., 45 Ohio St. 631.) In Collins et al. v. Stanley, 15 Wyo. 282, 88 P. 620, an order denying a motion to vacate a temporary injunction was reviewed, though the jurisdiction to do so was not questioned or considered.

Most of the cases decided in other States maintaining the right to review such an order on appeal or error cannot aid our consideration of the question, for they are based upon a statute plainly declaring that an appeal may be had from an order granting, refusing or vacating an injunction. But in Michigan, apparently without a provision plainly so declaring, an order granting an injunction temporarily or until the final determination of the suit was held to be appealable, the court saying: "This injunction operated, and was intended to operate, all the aid to complainant which the bill called for; and the whole bill was framed substantially to secure a passage across defendant's right of way speedily. It had all the effect of a final decree." (Toledo, &c., Ry. Co. v. Detroit L. & N. R. R., 61 Mich. 9, 27 N.W. 715.) And there are other States where it is held that where an injunction is the only relief sought by the bill, and a motion to dissolve for want of equity in the bill is sustained, the order is appealable, on the ground that the motion operates as a demurrer to the...

To continue reading

Request your trial
29 cases
  • Jones v. Chicago, Burlington & Q. R. Co.
    • United States
    • Wyoming Supreme Court
    • April 12, 1915
    ... ... ( Burns v. Railroad ... Co., 14 Wyo. 498.) Supreme Court Rule No. 13 applies ... only where there has been a trial. ( Anderson v ... Inglehart, 18 Wyo. 196; First National Bank v ... Swan, 3 Wyo. 356.) The rule announced in Perkins v ... McDowell, 3 Wyo. 328, ... ...
  • Safeway Stores v. Coe
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • May 29, 1943
    ...S.E. 405; Perry v. Acree, 165 Ga. 446, 141 S.E. 212; Jenness v. Co-Operative Publishing Co., 36 Idaho 697, 213 P. 351. 27 Anderson v. Englehart, 18 Wyo. 196, 105 P. 571, Ann.Cas.1912C, 894. 28 Butler v. Georgia Agricultural Credit Corporation, 37 Ga.App. 390, 140 S.E. 426. 29 Buchanan v. Ja......
  • Huber v. Delong
    • United States
    • Wyoming Supreme Court
    • May 29, 1939
    ... ... Flaks Inc. v. De Berry ... (Wyo.) 79 P.2d 825. The same rule applies in attachment ... cases. Collins v. Stanley, 15 Wyo. 282. Anderson ... v. Englehart, 18 Wyo. 196. Stowe et al. v ... Powers, 19 Wyo. 291. Weaver v. Richardson, 21 ... Wyo. 343. The tax deed and quit-claim deed ... ...
  • Riffle v. Sioux City and Rock Springs Coal Mining Co.
    • United States
    • Wyoming Supreme Court
    • July 1, 1912
    ... ... properly issued, and, if not, the plaintiff in error cannot ... now complain. (High on Receivers, (4th Ed.) 216; Anderson ... v. Matthews, 8 Wyo. 307; 34 Cyc. 296; Iron Co. v ... German, (Ala.) 28 So. 603; Vandalia v. St. Louis R ... Co., (Ill.) 70 N.E. 662; Wallace ... or the vacation of the receivership may affect substantial ... rights and are subject to review on error. In Anderson v ... Englehart, 18 Wyo. 196, 105 P. 571, it was held that an ... order denying a motion to dissolve a temporary injunction is ... reviewable as a final order ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT