Barrett v. Whitmore

• Decision Date: 23 May 1922
• Docket Number: 1053
• Citation: 207 P. 71,28 Wyo. 495
• Parties: BARRETT v. WHITMORE, Admr
• Court: Wyoming Supreme Court

207 P. 71

28 Wyo. 495

BARRETT v. WHITMORE, Admr

No. 1053

Supreme Court of Wyoming

May 23, 1922

ERROR to the District Court, Sweetwater County; VOLNEY J. TIDBALL Judge.

Heard on motion to consider the record in Case No. 1027 as the record in this case and also heard on motion to dismiss.

Motion to dismiss overruled. Motion to use papers sustained.

Kinkead Ellery & Henderson, Herbert Van Dam, Jr., and P. W Spaulding, for plaintiff in error.

Case No. 1027 involving interest of the same parties was dismissed and this proceeding was started. The motion is that the record in 1027 be considered the record in this case, which presents a different arrangement of some of the parties. Upon this ground Joseph Barrett moves to dismiss. The gist of this motion is that Mary Barrett has no right to separate herself from Patrick C. and Joseph E. Barrett, and that they are not proper defendants in this proceeding. The common law rule has been changed by the code. Where the code provisions applicable to proceedings in error are silent upon a question provided for by the procedure relating to actions in courts of original jurisdiction, the latter may be followed. (Evans v. Brick Co., 20 Wyo. 188.) The rule relating to parties plaintiff and defendant in the petition in error was considered in Smatters v. Rainey, 14 O. St. 287. The essential thing is that all parties be before the court. (5593 C. S. In re Big Laramie River, 192 P. 680; Richardson v. Thompson, 60 N.W. 909; Railway Co v. Austin, 163 P. 517; Denny v. Ostrander, 127 P. 390.) A party adversly interested in sustaining the decree below should be joined as defendant in error. (3 C. J. 1019.) Patrick and Joseph Barrett were not necessary plaintiffs in error. (Howard v. Levering, 8 Ohio Cir. Ct. 614.) All parties interested in the decree are before the court.

N. R. Greenfield, for James Barrett moving for dismissal.

A second proceeding in error cannot be taken while a prior proceeding is pending. (3 C. J. 531; Const. Co. v. Crane, 174 U.S. 600; Brown v. Plummer, 70 Cal. 337; Daly v. Kohn, 230 Ill. 436; State v. King, 6 S.D. 297; U. S. Co. v. Shedd, 240 F. 689; Mitter v. Black Diamond Coal Co., 191 P. 1069.)

T. S. Taliaferro, Jr., W. A. Muir, for defendants in error.

The record in 1027 should not be allowed to be used in 1053. The dismissal of Case No. 1027 upon the ground stated in the motion therefor is ipso facto a confession of the facts upon which No. 1053 must rest. The motion to dismiss the petition in error in the present case is predicated upon several grounds among them that the matters complained of were never presented below in a motion for new trial; that the conveyance to Mary Barrett was without consideration and that Mary Barrett had not filed objections to the final account and petition for distribution. The grounds of the motion are conceded in the supplemental memorandum filed by defendant in error after the oral argument. The first proceeding in error could not be abandoned. To abandon is to totally withdraw. (Pidge v. Pidge, 44 Mass. 257.) A perfect title cannot be abandoned. (City v. Riddle, 25 P. 259.) The pendency of an ineffective appeal is no bar to a second appeal in the same cause. (Sligh v. Shelton, 54 P. 763.) The case at bar resembles the case of Reichenback v. Lewis, 5 Wash. 577.) The authorities cited by counsel for plaintiff in error are without application. (Shaw v. Robertson, 70 N.W. 953; Smith v. Morrill, 52 P. 1110; Chambers v. Ousham, 155 S.W. 595; Daly v. Foster, 128 P. 71.) Some states hold that a proceeding in error can be instituted after an appeal has been brought in an appellate court. In the Horton case this court held that it cannot be done, and there is nothing in Boner v. Bank that modifies the rule.

Kinkead, Ellery & Henderson, Herbert Van Dam, and P. W. Spaulding, in reply.

The filing of the petition in error in 1053 was a confession of the motion of defendants in error to dismiss proceedings in error in No. 1027, and also constitutes record evidence of an abandonment of Case No. 1027. Case No. 1053 is not subject to dismissal on the ground that No. 1027 had not been formally dismissed of record. (3 C. J. 331. Noble v. Whitten, 76 P. 95; Shaw v. Robinson, 70 N.W. 953; Smith v. Morrill, 52 P. 1110; Lonergan v. Pebbles, 76 So. 694; Slobofiskey v. Curtis, 78 N.W. 322.) The rule in the Lonergan and Slobofiskey cases seems to be the equitable rule and as our statute is silent on the point, the Nebraska and Florida decisions should be followed. As to the use of the record filed in Case No. 1027 for purposes of the proceedings in 1053, Boner v. Bank seems to be directly in point in supporting the application.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

On June 8th, 1921, there was pending in this court a proceeding in error, No. 1027, fully perfected, entitled Mary Barrett, Patrick C. Barrett, and Joseph E. Barrett, plaintiffs in error, v. Tom Whitmore, as administrator of the estate of Mary Barrett, deceased, James Barrett, Union Pacific Coal Company, a corporation, E. E. Peters, and G. C. Gray, defendants in error. The only difference in the titles of this case, No. 1053, and of No. 1027 is that in the latter Patrick C. Barrett and Joseph E. Barrett are coplaintiffs in error, whereas in No. 1053 they are, instead, made co-defendants in error. On January 8, 1921, there was filed in said cause No. 1027 a motion by James Barrett to dismiss the proceeding, alleging among other reasons that the assignments of error are joint, and that it appears that Patrick C. Barrett and Joseph E. Barrett disclaim any interest in the subject matter. Thereupon on June 8th, 1921, plaintiffs in error therein filed a motion for permission to amend the petition in error. Tom Whitmore, as administrator, on June 8th, 1921, filed a motion therein to strike said motion of plaintiffs in error. Thereupon, on June 8th, 1921, without said motions having been acted on, this proceeding in error, No. 1053, was instituted. An order for the original papers and entries was duly issued, directed to the clerk of the District Court of Sweetwater County, who subsequently, on August 6th, certified that all of the original papers and files called for had been transmitted by him to this court in connection with case No. 1027 and that he, therefore, could not transmit the same as commanded. The truth of this certificate is not questioned, and it seems the papers asked for are the same as those so theretofore transmitted. Thereupon, on October 6, 1921, there was filed in the present cause a motion by Mary Barrett, plaintiff in error, that said original papers and files theretofore transmitted to this court in connection with cause No. 1027 be considered and used by the court as the original papers in this cause, No. 1053. This motion has been duly argued and submitted in connection with the motion to dismiss hereinafter mentioned.

In the meantime, and on August 29th, 1921, said Tom Whitmore filed herein his plea in abatement, the substance of which is, so far as material here, that there is another action, namely, No. 1027, pending between the same parties, involving the same issues. Thereupon, on September 27th, 1921, there was filed in this court by the plaintiffs in error, through their attorneys, Kinkead, Ellery & Henderson, a motion to dismiss said cause No. 1027, setting forth among other things, that Mary Barrett at all times was and is the real and only party in interest so far as plaintiffs in error are concerned; that cause No. 1053 was instituted for the purpose, not of delay, but to correct errors in the prior proceedings; that the motions to dismiss and strike the motion to amend, filed in cause No. 1027, was apparently confessed; that the latter cause was not dismissed, when cause No. 1053 was instituted, by inadvertence of counsel, although they then had a formal dismissal, signed by counsel of record in cause No. 1027 in their hands for the purpose of filing it. This motion, so signed by the counsel of record in the latter cause, is attached, and the allegations are supported by the affidavit of one of the attorneys of record in cause No. 1053. Notice of the hearing of this motion was duly given, and no objections having been filed cause No. 1027 was dismissed without prejudice by this court on October 3, 1921. Thereafter and on November 19, 1921, James Barrett, one of the defendants in error herein, filed in cause No. 1053 his motion to dismiss the same for the reason that at the time of the commencement thereof another action, involving the same subject matter, was pending. This motion has been submitted in conjunction with the motion for the use of the original papers above mentioned, and is now up for disposition.

Some contention is made that no authority is shown from Patrick C Barrett and Joseph E. Barrett for dismissal of cause No. 1027. Attention is called to the fact that Mary Barrett filed in said cause on August 13, 1921, her authority for the appearance of Kinkead, Ellery & Henderson in said cause and in any subsequent proceeding. We can see no force in the contention. The rule is, that except under special circumstances making it inequitable for the co-parties, which circumstances do not appear to exist in this case, one of the parties who desires to dismiss an appeal as to himself may do so. (4 C. J. 564; Field v. Kenneweg, 218 Ill. 366, 75 N.E. 986; Thorp v. Thorp, 40 Ill. 113.) Again, Patrick C. Barrett and Joseph E. Barrett do not question the authority of the attorneys to dismiss the cause, and we do not think that any other person has the right to do so. So we shall proceed to determine as to whether or not cause No. 1053 should be dismissed on account of the pendency of cause No. 1027 when the...