Bales v. Brome
| Decision Date | 16 August 1940 |
| Docket Number | 2150 |
| Citation | 56 Wyo. 111,105 P.2d 568 |
| Parties | BALES v. BROME |
| Court | Wyoming Supreme Court |
APPEAL from the District Court, Washakie County; P. W. METZ, Judge.
Action involving a drilling contract by J. W. Bales, as trustee of the Bales Oil Trust, an express trust, against Charles L Brome and others, wherein defendants D. L. McDonald, D. L McDonald, Trustee, and Wyoming Oil & Refining Company filed demurrers which were sustained, after which action was dismissed as to demurring defendants. From an order vacating and setting aside the order sustaining the demurrers, the last-named defendants appeal.
Affirmed.
For the appellants, there was a brief by C. H. Harkins, C. R. Harkins and D. J. Harkins of Worland and oral argument by Mr. C. H Harkins.
The petition fails to state that plaintiff is entitled to possession. McElroy v. Moose (Okla.) 151 P. 857; Bancroft's Code Pleading, Vol. 3, p. 2241. A title existing at the commencement of the suit must be alleged; the presumption of continued ownership will not supply a deficiency in this respect, where title at some prior date is alleged. Bancroft's Code Pleading, Vol. 3, p. 2242. The demurrers stated that several causes of action were improperly joined and that the petition does not state facts sufficient to constitute a cause of action. The order stated that the demurrers were sustained and an exception was taken by the plaintiff. There was no misjoinder of parties defendant. On November 16, 1936, appellants presented a motion to dismiss the case against them and plaintiff announced that he had no objection. An order of dismissal was thereupon entered. Plaintiff's motion to vacate the order sustaining the demurrers was filed September 14, 1937, being in the second term of the Court in Washakie County. The court was without jurisdiction to vacate its prior order sustaining appellants' demurrers, for the reason that the case had been dismissed at a preceding term, and no action or proceeding had been taken to reinstate the case, or set aside the order of dismissal. Sec. 89-2307, R. S. The court erred in overruling the special appearances of appellants, because the court was then without jurisdiction. Bank of Commerce v. Williams (Wyo.) 69 P.2d 525. It was held in the above case that the moving party must show a meritorious defense, or, by analogy, a valid cause of action, and that the moving party is not at fault or negligent. 18 C. J. 1207; 17 Amer. Jur. 90. The order vacating a prior order is appealable. Sec. 89-4801, R. S.; Luman v. Hill, 36 Wyo. 427; Makranczy v. Gelfand, 142 N.E. 688; Huntington v. Finch & Co., 3 Ohio St. Rep. 447; Hettrick v. Wilson, 12 Ohio St. Rep. 136; Braden by Hoffman (Ohio) 22 N.E. 930; Deering & Co. v. Creighton (Ore.) 38 P. 710; Home v. Bowie, 13 S.Ct. 582; Jennings v. Des Moines Mt. Hail etc., 146 N.E. 564.
For the respondent, there was a brief by C. A. Zaring of Basin, C. W. Axtell of Thermopolis, Wyoming, and Horace S. Davis of Billings, Montana, and oral argument by Mr. Davis.
The question of jurisdiction has already been presented by respondent's motion to dismiss. An attempted appeal from a non-appealable order confers no appellate jurisdiction and the point may be availed of at any time. An appeal unsupported by statute confers no appellate jurisdiction. Bales v. Brome (Wyo.) 84 P.2d 714. The order appealed from was not a final order. Section 89-4801, R. S. 1931. It affects no substantial right of the appellants. This case differs from Mitter v. Black Diamond Coal Company, 28 Wyo. 439, and Bank v. Moorcroft Ranch Co., 5 Wyo. 50, and State ex rel. Voight v. Lueders (Ohio) 128 N.E. 72. The order appealed from does not determine the action and prevent a judgment. It was not made in a special proceeding or upon a summary application in an action after judgment. There is no judgment in the record. The controlling statute is Chapter 89, Section 2201, R. S. 1931. We cite the following authorities without comment: Jacobson v. Wickam, 36 Wyo. 522, 257 P. 7; Pentz v. Corscadden (Mont.) 144 P. 157; Allen v. Boberg (Wisc.) 84 N.W. 421; Gottstein v. St. Jean (Minn.) 82 N.W. 311; Fauber v. Keim (Nebr.) 120 N.W. 1019; Bick v. Umstattd (Mo.) 117 S.W. 642; Menardi v. O'Malley, 3 Wyo. 327, 23 P. 68; Turner v. Hamilton, 10 Wyo. 177; Greenawalt v. Natrona Improvement Co., 16 Wyo. 226, 92 P. 1008; Owen v. Saratoga Company, 19 Wyo. 409, 118 P. 652; Bock v. Nefsy, 29 Wyo. 33, 207 P. 1008; McInerney Corp. v. Smith, 39 Wyo. 191; Kahn v. Traders' Ins. Co., 4 Wyo. 419; Lowellville Coal Mining Co. v. Zappio (Ohio) 89 N.E. 97. We concede that an order may be final and appealable in some cases under Chapter 89, Section 2201, R. S. 1931, without being a judgment. Enos v. Keating, 36 Wyo. 318; Kahn v. Traders' Insurance Company, 4 Wyo. 419. But the rule is inapplicable in the present case. On the merits, no error appears in the vacation of the order inadvertently entered, sustaining appellants' demurrers to the original petition. The court sustained appellants' demurrers solely on the ground of misjoinder of parties defendant. The order made by the court to correct the record was within the scope and intent of Chapter 89, Section 2301, R. S. 1931. Tobacco Co. v. Somers (Fla.) 127 So. 333; 34 C. J. 227; Boyd v. Campbell, 33 N.Y.S. 557; Bohlen v. Ry. Co. (N. Y.) 24 N.E. 932; Harm v. Boyd (Okla.) 185 P. 1092; Wilson v. Carroll (Colo.) 250 P. 555; St. Onge v. Blakely (Mont.) 245 P. 532; Morrison & Pardue v. Roberts Co. (N. M.) 287 P. 290; Lehman v. Norton (Minn.) 253 N.W. 663; Insurance Co. v. Boon, 95 U.S. 117. The appeal should be dismissed.
In this case the plaintiff J. W. Bales, as trustee, on March 18, 1936, brought an action in the district court of Big Horn County with reference to a drilling contract for oil and gas. The particulars of the petition need not be mentioned here. D. L. McDonald, D. L. McDonald, trustee, and Wyoming Oil and Refining Company, hereinafter called appellants, were, along with others, made parties defendant. The appellants, each separately, filed a demurrer to the petition on two grounds, namely, that the petition fails to state facts sufficient to constitute a cause of action, and that there is a misjoinder of causes of action. The demurrers were heard, and on March 28, 1936, the court wrote a letter to the attorneys for the respective parties, stating that it would sustain the demurrers of the appellants on the ground of misjoinder of parties defendant. On June 16, 1936, the court, instead of following the statement in the letter, sustained the demurrers of the appellants generally. Thereafter, on November 16, 1936, the appellants filed a motion, setting forth the fact that the demurrers filed by them in the case had been sustained, and asking that they be dismissed from the case. The motion came on for hearing on the same day. Counsel for the plaintiff, and respondent here, were asked whether or not they had objection to the dismissal, and they answered that they did not. The court thereupon sustained the motion, and in its judgment stated that "it is therefore ordered that the above entitled case be and the same is hereby dismissed as to the said defendants" (the appellants here). Thereafter, on September 14, 1937, which was at a subsequent term of court, plaintiff and respondent filed a motion, reciting the commencement of the action; the filing of the demurrers in the case by appellants; the letter of the court to the effect that the demurrers would be sustained on the ground of misjoinder of parties; the entry of the order sustaining the demurrers contrary to the ground stated by the court in its letter; the fact that the actual order entered was by inadvertence, and asked the court to correct and modify the order to correspond with the facts. On April 12, 1939, the court entered an order vacating and setting aside the order sustaining the demurrers. The appellants have taken an appeal from that order.
1. A motion to dismiss the appeal has been filed on the ground that the order appealed from is not an appealable order. Section 89-4801, Rev. St. 1931, 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, made 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 article." We need not consider the first part of this provision, but proceed to consider whether or not the order of the court from which the appeal is taken is an "order affecting a substantial right * * * upon a summary application in an action, after judgment." Counsel argue that there was no judgment in this case within the meaning of this provision. We think they are in error. The cases cited are either not in point, or are based on technical grounds. The general rule undoubtedly is that a judgment of dismissal such as we have in the case at bar is a final judgment. Canning v. Hackett, 3 F.Supp. 460; Zadig v. Insurance Co., 42 F.2d 142; Rupert v. Brook Mays & Co. (Tex. Civ. App.) 299 S.W 474; Foley v. Douglas & Bro., 121 Conn. 377, 185 A. 70; Di Meo v. Hines, 229 Ill.App. 486; Wohlgemuth v. Taylor, 1 Ohio C.C. 62; Jarvis v. Martin, 77 Conn. 19, 58 A. 15. A number of other cases are cited in these authorities. It is because a judgment of dismissal is a final judgment that a case cannot, ordinarily, be reinstated after the term. It is stated in 18 C. J. 1207 that a judgment of dismissal in so far as the particular action is concerned, is the same as a judgment on the merits. So, too, an involuntary dismissal is ordinarily appealable. 4 C. J. S. 237; 3 C. J. 497;...
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Loehrer v. Harclerode, 8414
...driving. It is a general rule of law that a court may correct errors in its docket and Wyoming follows this general rule, (Bales v. Brome, 56 Wyo. 111, 105 P.2d 568) but we note that the Wyoming Supreme Court in that case at page 573 of the Pacific Report recognized another general rule whi......