Beeman & Cashin Mercantile Company v. Sorenson

• Decision Date: 10 June 1907
• Citation: Beeman & Cashin Mercantile Company v. Sorenson, 89 P. 745, 15 Wyo. 450 (Wyo. 1907)
• Parties: BEEMAN & CASHIN MERCANTILE COMPANY v. SORENSON
• Court: Wyoming Supreme Court

89 P. 745

15 Wyo. 450

BEEMAN & CASHIN MERCANTILE COMPANY v. SORENSON

Supreme Court of Wyoming

June 10, 1907

15 Wyo. 450 at 464.

Original Opinion of April 15, 1907, Reported at: 15 Wyo. 450.

Rehearing denied.

J. H Ryckman, for plaintiff in error.

(On petition for rehearing.) A judgment not supported by the pleadings is fatally defective. (Bachman v Sepuleda, 39 Cal. 688; 11 Ency. Pl. & Pr., 868, 877.) The defendant cannot be heard to say that the property does not belong to him. His wife, if the owner, should have proceeded to reclaim the property under Section 4449, Revised Statutes, and not having done so she is estopped, as well as the defendant for not moving to discharge the property. The clerk's taxation of the costs must be presumed to have occurred properly. The defendant should have moved for a retaxation of the costs in a reasonable time. Otherwise he is estopped.

POTTER CHIEF JUSTICE. SCOTT, JUSTICE, concurs.

OPINION

ON PETITION FOR REHEARING.

POTTER CHIEF JUSTICE.

It is suggested on petition for rehearing that the judgment appealed from was not prayed for by either the defendant or the sheriff and was not based upon any pleadings, nor any motion or paper filed in the case; that the judgment does not inure to the benefit of the sheriff, but is a judgment in favor of the defendant. The last point ignores both the statute and the judgment. The statute expressly says that the whole of the allowance made for keeping attached property shall inure to the benefit of the sheriff, and it is well settled both upon reason and authority that a judgment for the amount allowed may be rendered in the attachment suit; and in several of the cases cited in the former opinion the judgment therefor was rendered against the plaintiff in the action. The judgment is not one in favor of the defendant; it does not purport to be in his favor. The order reads: "and that judgment be entered against the plaintiff herein for said costs." In connection with the statute the judgment clearly inured to the benefit of the sheriff.

If it was apparently true that the judgment was not based upon pleadings or a paper of any kind, the point could not be considered in the absence of the sheriff as a party to the proceeding in error. But an affidavit of the officer was on file, pursuant to the statute, and that was sufficient to authorize an allowance of the amount expended, and it not appearing that the same...