Claughton v. Johnson

• Citation: 41 P.2d 527,47 Wyo. 536
• Decision Date: 18 February 1935
• Docket Number: 1851
• Parties: CLAUGHTON, ET AL. v. JOHNSON, ET AL
• Court: United States State Supreme Court of Wyoming

41 P.2d 527

47 Wyo. 536

CLAUGHTON, ET AL. v. JOHNSON, ET AL

No. 1851

Supreme Court of Wyoming

February 18, 1935

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

Heard on Petition for Rehearing.

For original decision see page 447 of this volume and 38 P.2d 612.

Judgment affirmed and a rehearing denied.

In support of the petition, there was a brief by Hagens &amp Wehrli, of Casper.

The petition in the trial court did not state a cause of action the point is not denied by counsel. It was clearly and fully shown in their original briefs. The opinion states that the contention is technical. To so hold is to overrule all prior decisions of this court, to the effect that a judgment obtained on a petition which fails to state a cause of action will be reversed, even though no objection was made thereto in the court below. Hartford Fire Insurance Company v. Kahn, 4 Wyo. 364; Nichols v. Weston County, 13 Wyo. 1; Dalles Lumber Company v. Urquhart, 16 Ohio St. 71; Grover Irrigation & L. Co. v. Ditch Company, 1916C--L. R. A. 1275; Spaugh v. Peterson, 34 Wyo. 376; Quinlan v. St. John, (Wyo.) 201 P. 149. It is apparently held that the contract must be ignored and is of no effect to bind the parties. This is contrary to previous holdings of this court. Phillips v. Hamilton, 17 Wyo. 41, 51; Dunn v. Gilbert, 36 Wyo. 249. The court should require the plaintiff to do equity. Harney, Admr. v. Montgomery, 29 Wyo. 362; Bank of Alma v. Hamilton, (Nebr.) 123 N.W. 458; Keller v. Southern, (N. D.) 144 N.W. 671; Chapman v. Hicks, (Cal.) 182 P. 336; Langley v. Young, (Cal.) 211 P. 640; Rock County v. Wetrick, (Wisc.) 128 N.W. 94; Price v. Horton, 83 So. 670; Stark v. Cooper, (Mo.) 217 S.W. 104; Minnehoma Oil Co. v. Florence, 217 P. 443; Home Insurance Company v. Strange, (Texas) 195 S.W. 849; Broatch v. Boysen, (Wyo.) 236 F. 516; McMillan v. Brookfield, (Ark.) 234 S.W. 621; Brown v. Robinson, 120 N.E. 694; Warfield v. Adams, (Mass.) 102 N.E. 706. Where a sale is set aside, the court should in its decree make due provision for the restitution of any purchase money that has been paid, with interest. 65 C. J. 764; Hoffman v. Buchanan, (Texas) 123 S.W. 168; Johnson v. Marti, 214 S.W. 726.

In opposition to the petition for rehearing, there was a brief by F. W. Layman, of Casper.

No authorities have been submitted by plaintiffs in error in support of their motion for rehearing, other than have been cited in the original brief of counsel for plaintiffs in error. Outside of the record, the facts are that profits from the partnership business paid off miscellaneous bills against it, amounting to between one and two thousand dollars, and defendant in error did have and does have a substantial equity in the partnership business. Plaintiff in error, A. Claughton, attempted to place the real property of the partnership into the hands of his wife, and beyond the reach of the partnership. The foregoing facts were not developed by the evidence, for the reason that the action was apparently one for the dissolution of the partnership. Defendant in error believes the decision of the Supreme Court, in view of the evidence introduced in the lower court, is correct, and that a rehearing should be denied.

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

OPINION

BLUME, Justice.

A petition for rehearing has been filed herein by defendants. Opportunity to answer the contentions therein was given to counsel for plaintiffs. Neither the trial court, nor this court, have been able to convince counsel for defendants that this case is entirely different from Quinlan v. St. John, 28 Wyo. 91, 201 P. 149, 203 P. 1088, the opinion in which, incidentally, was written by the same judge who acted as trial judge in the case at bar. We fear that the time is still too near when counsel, on account of their interest and their association and intimate knowledge of the parties involved, can take of this case the true perspective which will, we think, naturally, necessarily and compellingly be taken thereof by every court and for that matter, we are convinced, by every disinterested third person.

We sparingly considered the subject of pleadings in the original opinion. We pointed out the reasons therefor. But a great portion of the petition for rehearing, and the brief in support thereof, is devoted thereto, so that we feel that we cannot escape going into it to a greater extent.

Counsel take exception to the statement that the evidence in the case was admitted without objection. The statement was of minor importance, and for brevity's sake we but stated the result, without stating how we arrived at it. Perhaps we should have done so. It is true that at the opening of the trial the appellants interposed a demurrer ore tenus, that is to say, they objected to the introduction of any evidence on the ground that the petition fails to state a cause of action. The objection was not then ruled on, but was taken under advisement. We have, after diligent search, been unable to find that the court ever made a ruling, notwithstanding the fact that the abstract of the record, citing page 35 of the record, states the contrary. Nor do we find that the trial court was thereafter asked to make a ruling. It has been held in a number of cases that under these circumstances the objection is waived. St. Louis etc. Co. v. Brown, 62 Ark. 254, 35 S.W. 225; Grape v. Wilderholt, (Ia.) 80 N.W. 516, and cases cited; Federal Schools v. Barry, 195 Iowa 703, 192 N.W. 816; Curcuru v. Electric Light Co., 258 F. 785; see McDonald v. Mulkey, 32 Wyo. 144, 231 P. 662; Leach v. Frederick, 36 Wyo. 121, 253 P. 669. We concede, as contended, that this did not waive the point that the petition fails to state a cause of action; it merely waived, if anything, only the particular objection made, resulting, therefore, in the evidence being admitted without objection. It seems, however, upon further investigation, that there is some conflict in the authorities. 64 C. J. 221. Hence we prefer to leave the point open at this time. And we shall, in view of counsel's insistence, consider the sufficiency of the petition, in so far as the circumstances herein permit. Most of the reasons given by counsel to show the contrary are based on the theory that the case is governed by Quinlan v. St. John, supra. In view of our decision herein, these reasons will not be mentioned. It could subserve no purpose to do so. Some of the reasons assigned, however, are applicable even under the theory on which we decided the case. These will be mentioned later. It is to be regretted that counsel, even though they disagree with this court in its conclusions, did not see fit, in the brief for rehearing, to argue the sufficiency of the petition from the standpoint of the theory which we adopted. They claim, generally, that we entirely ignored our previous decisions, and seem to think that our view as to the requirements of a petition, as scantily indicated in our original opinion, is altogether wrong, and they apparently contend that a petition must state a complete cause of action in any and all events to uphold a judgment. This view of counsel touches one of the fundamental rules of procedure. If, as counsel claim, we departed from correct and well established principles, it is our duty to mend our error, and notwithstanding counsel's doubt, we would fulfill that duty without hesitation, for no one realizes more than we do that to err is human. We do not, however, think that we committed any error in this connection. To show that, it seems advisable, notwithstanding the lengthy discussion of Mr. Justice Potter in Grover Irr. Co. v. Lovella Ditch Co., 21 Wyo. 204, 131 P. 43, to point out, as briefly as possible, the general and salient features of the fundamental rule of procedure above mentioned, in addition to the special features applicable here.

Even though the system of Code pleading has been in existence for the period of over three quarters of a century, we find a lack of uniformity in the decisions of the courts as to when, and under what circumstances, a pleading should, after judgment, be held to be fatally defective or otherwise. While, at first blush, that seems surprising, it should, perhaps, not be so, when we bear in mind that "there is in all systems of law a perpetual struggle between the principle of rigidity, which makes for certainty, and that of flexibility, which makes for justice in the individual case," and that the subject under discussion is but illustrative of that struggle. Among the principal contenders engaged therein are the legislatures and the members of the bar. Courts have generally been conservative, as shown, for instance, by the rule of stare decisis, and instead of being the main contenders, they, to a large extent, but record the ultimate conclusions arrived at, though not without dissension, by others who keep up the struggle. Until, then, definite rules on the subject before us have been adopted in this state, we cannot afford to be dogmatic about it. We cannot say ipse dixit and let it go at that, for there seem to be too many masters. Hence we can but hope that, with the aid of the members of the bar, if they will extend it, we may be able to maintain a path of the golden mean.

The rule is general, of course, that a petition must state a cause of action, and we are not unmindful of what has been said in regard thereto in previous decisions of this court. The point that it does not do so is never waived and may be raised even in this court. Nichols v. Weston County, 13 Wyo. 1, 76 P. 681; Spaugh v. Peterson, 34 Wyo 374, 244 P. 224; Grover Irr. Co. v. Lovella Ditch Co., supra; Delfelder v. Bank, 38 Wyo. 481, 269 P. 418. The rule is such a familiar one, that we are apt to forget...