Boswell v. Bliler

Decision Date08 October 1900
Citation9 Wyo. 277,62 P. 350
PartiesBOSWELL, ADMINISTRATOR, ETC., v. BLILER
CourtWyoming Supreme Court

ERROR to the District Court, Albany County, HON. CHARLES W. BRAMEL Judge.

Action upon an account for the agistment of cattle. Judgment went for plaintiff, and defendant brings error. The only error assigned was an excessive allowance of interest.

Affirmed.

N. E Corthell, for plaintiff in error, contended that interest should have been allowed from thirty days after the date of the last item, instead of from thirty days after each item as allowed by the trial court, and cited Sanderson v Reed, 75 Ill. 190; Pac. C. L. S. Co. v. U.S. 33 Ct. Cl., 36; L. 1895, Ch. 30, Sec. 4; Imperial H. Co. v. Claflin, 175 Ill. 119; Phillips v. Reben, 64 Ill.App. 477; Baxter v. State, 9 Wis., 44; Lepin v. Paine, 15 Neb. 326; Devereaux v. Henry, 16 id., 55; Weston v. Brown, 30 id., 609; Newman v. Newman, 29 Mo. App., 649; 15 Colo. 257; 14 S. W., 1068.

C. E. Carpenter, for defendant in error, contended that the cattle were kept yearly, and interest ran from each year as to the amount due therefor, and further that plaintiff's proper course was a demurrer to the petition or a motion for separate statement. It was also contended that the motion for new trial was not filed in time, having been filed after the term.

KNIGHT, JUSTICE. POTTER, C. J., and CORN, J., concur.

OPINION

KNIGHT, JUSTICE.

This action was originally brought in the district court of Albany County by the defendant in error, Warren Bliler, against plaintiff in error, Nathaniel K. Boswell, as administrator of the estate of Bertha A. Hance, deceased, upon an account for services rendered; and judgment was rendered in said court in favor of said defendant in error for the sum of $ 445.75, on the 9th day of March, A. D. 1899. Subsequently, on the 13th day of March, A. D. 1899, said plaintiff in error filed his motion for a new trial, which was denied, and the case comes to this court on error. Defendant in error calls attention to the fact that said motion for a new trial was filed four days after the judgment was rendered. Section 3423, Revised Statutes of Wyoming, reads as follows: "Unless specially provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last, and if the last be Sunday, it shall be excluded."

In this case, the third day after the rendition of the judgment, was Sunday, March 12, and if no other objection appeared, said motion might within time have been filed on Monday, March 13. Another objection, however, is made, viz.: that said March 13, 1899, was the first day of the ensuing term of court. Section 3748 of our laws reads as follows: "The application for a new trial must be made at the term the verdict, report, or decision is rendered; and except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be made within three days after the verdict or decision is rendered, unless such party is unavoidably prevented from filing the same within such time."

This court in the case of Casteel v. the State, and at the present term has entered very fully into a discussion of Section 5416 of our law, the same being the statutory provision as to motions for a new trial in criminal cases; and it seems to be unnecessary to repeat here the reasons given for holding that the requirements of law providing the time within which, and the term at which, the motion must be filed are mandatory. Plaintiff in error claims, "There was a motion for a new trial and a bill of exceptions which are incorporated in the record; but which are unnecessary to the consideration of the error alleged for the reason that the petition, on its face, does not sustain the judgment in this respect." Let us see if this contention is supported by the facts.

The second cause of action contained in the petition upon which judgment was rendered reads as follows: "2. Plaintiff alleges that on the 2d day of November, 1897, the said...

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28 cases
  • Cook v. Bolduc
    • United States
    • United States State Supreme Court of Wyoming
    • May 17, 1916
    ...of the testimony of John and Mary Mengel not being discussed in the brief must be deemed to have been waived. (Boswell, Admin., v. Bliler, 9 Wyo. 277; Reiordan, et al. v. Horton, et al., 16 Wyo. Pearce v. Holm (Wyo.) 152 P. 787.) Evidence of testator's relations with deceased prior to marri......
  • Cosfriff Brothers v. Miller
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    • United States State Supreme Court of Wyoming
    • March 31, 1902
    ...... presented in their brief are waived. ( The Syndicate. Improvement Co. v. Bradley, 6 Wyo., 177; Boswell v. Bliler, 9 Wyo. 277.). . . Plaintiffs. in error seem to regard the principle here involved the same. as the common law rule, ......
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    • United States State Supreme Court of Wyoming
    • November 1, 1917
    ...230, 257; Phillips, et al., v. Brill, et al., 15 Wyo. 521, 527; C. B. & Q. R. R., et al., v. Lampman, 18 Wyo. 106, 118; Boswell, Admr., v. Bliler, 9 Wyo. 277.) Only presented by motion for new trial can be considered. (Court Rule No. 13.) The assignment of error that decision was contrary t......
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