Cooley v. Frank

• Decision Date: 11 September 1951
• Docket Number: No. 2481,2481
• Parties: COOLEY et al. v. FRANK et al.
• Court: Wyoming Supreme Court

Page 446

235 P.2d 446

68 Wyo. 436

COOLEY et al. v. FRANK et al.

No. 2481.

Supreme Court of Wyoming.

Sept. 11, 1951.

R. Lauren Moran, Riverton, for appellants.

H. S. Harnsberger, Lander, for respondents.

BLUME, Justice.

In this case plaintiffs sought to recover from appellants judgment for $848.10 and interest by reason of hay sold and delivered to defendants. It appears herein that on July 9, 1947, the parties entered into a written contract whereby the plaintiffs sold to the defendants and appellants herein certain lands in Fremont County, Wyoming, together with certain leaseholds, and together with 50 tons of hay for the consideration of $28,000 reserving to grantors oil and gas rights in the land. An option was given appellants, as hereinafter more fully mentioned, to purchase 50 tons additional hay from the plaintiffs at the market price. The claim of plaintiffs herein relates to such additional hay. Appellants denied the allegations of the plaintiffs, except as to the purchase of the lands as above mentioned, and the fact that 50 tons of hay were to be delivered as part of the purchase price. They also filed a cross-petition containing three different causes of action. The trial court allowed nothing on the cross-petition, and gave judgment to the plaintiffs in the sum of $771.00, together with interest in the sum of $103.18, a total of $874.18 and the defendants in the action, generally referred to herein as the appellants, have appealed to this court. We shall first consider the causes of action set forth in the cross-petition, and shall consider the cause of action of the plaintiffs thereafter.

1. Effect of amended pleading, etc.

The defendants filed an answer and a cross-petition on February 10, 1949. The cross-petition contained three causes of action. In the first one, the appellants pleaded that plaintiff, well knowing the contrary, represented to appellants that the house on the premises was in sound condition, whereas in fact the floors were rotten, and that appellants bought the premises relying on the representations so made. For a second cause of action defendants claimed damages by reason of operation on the land exploring for oil and gas. In the third cause of action defendants claimed $80.40 by reason of taxes assessed for weed control. Plaintiffs demurred to the first and third causes of action contained in the cross-petition. The court sustained the demurrer to the first cause of action relating to damages by reason of the rotten floors in the house, and defendants now assign the ruling of the court as error.

The order of the court gave defendants 14 days in which to amend their cross-petition. They availed themselves thereof, and as a first cause of action in their first amended cross-petition, they again claimed damages by reason of exploration on the land for oil and gas. As a second cause of action, they again claimed $80.40 by reason of taxes for weed control. The first cause of action in their original pleading was entirely omitted. There is no intimation in the record that defendants stood on their pleading in that connection. In the final judgment, rendered January 19, 1950, there is a finding that 'the defendants shall take nothing by reason of their cross-petition.' There was only one cross-petition then before the court, namely the amended cross-petition. The final judgment was approved as to form by counsel for the defendants. It thus appears that there never was any final judgment as to the cause of action relating to the rotten floors of the house above mentioned. We have held that an appeal will not lie on an order sustaining a demurrer, inasmuch as such order is not a final judgment permitting an appeal. Bock v. Nefsy, 29 Wyo. 33, 207 P. 1008, and cases cited.

There is another reason why the cause of action as to the condition of the house is not before us. We held in Arp & Hammond Hardware Co. v. Hammond Packing Co., 33 Wyo. 77, 236 P. 1033 and Wyoming Trust Co. v. Montgomery, 38 Wyo. 307, 267 P. 77 that a party availing himself of the right to amend waives any error in sustaining a demurrer. The point was considered at some length in the case of Moshannon Nat. Bank v. Iron Mountain Ranch Co., 45 Wyo. 265, 18 P.2d 623, 626, 21 P.2d 834. While in that case leave to amend was asked and given, the principle involved is, we think, the same. We quoted in that case from Berry v. Barton, 12 Okl. 221, 71 P. 1074, 66 L.R.A. 513, where it was said in part: "In order to take advantage of the ruling on a demurrer when it is sustained, the party must stand upon his pleading held to be defective, and not amend. * * * When he elects to amend he abandons, not necessarily his view of the law as urged against the demurrer, but that particular pleading, and it is just the same as though it had never been filed; and a party who expressly abandons a pleading cannot at his own election, without permission of the court, urge it as an existing pleading in the case."

The same result is reached under another line of authorities. The amended cross-petition is complete in itself. It is stated in 71 C.J.S., Pleading, § 321, pages 716-718 as follows: 'An amendment which is complete in itself and does not refer to, or adopt, the prior pleading, ordinarily supersedes it and the prior pleading ceases to be a part of the record for most purposes, and has been held to be in effect abandoned and, likewise, has been held to be in effect withdrawn as to all matters not restated, and to become functus officio. Unless placed in evidence the original pleading is no longer in the case, with the result that the subsequent proceedings in the case are to be regarded as based on the amended pleading, which will not be aided by anything in the prior pleading, and any motion addressed to the original pleading, and any ruling of the court with relation to the sufficiency of the original pleading, is not properly in the record.

'On the other hand, an amended pleading does not supersede the original pleading where it is evident that it is not designed as a substitute therefor or intended to take its place, as where it refers to its allegations, or expressly reaffirms them, or merely elaborates certain of them, or merely augments the original pleading by additional allegations, and in such cases the original pleading and the amendment are to be construed together.' The amended cross-petition makes no reference whatever to the condition of the house and the misrepresentation in that connection. There is no intimation therein, which could easily have been made, that defendants continued to rely on the allegations in that connection. It would seem to be clear that the cause of action in that connection was abandoned.

2. Weed-Control Tax.

Under the first cause of action in the amended cross-petition, appellants asked damages to the land which they bought by reason of exploring for oil and gas. This cause of action was compromised between the parties involved, and will not be considered any further.

Under the second count of the amended cross-petition defendants sought to recover from the plaintiff the sum of $80.32 on account of weed-control tax, paid by them in 1949, and shown on the tax receipt of 1948. It is admitted that this receipt is for the taxes of 1948, but it is claimed that the weed-control tax shown thereon is an exception. Defendant sought to show by the assessor of Fremont County 'that this assessment was made for weed-control tax assessed and due for 1947, and that because of the method of assessment followed by Fremont County, Wyoming, this is shown on the receipt for the year 1948.'

There is nothing in the contract entered into by the parties or warranty deed in the record that refers to the payment of taxes. The deed was executed in July, 1947. In the absence of any agreement to the contrary the taxes for that year were to be paid by the grantors of that deed. Section 32-607, Wyo.Comp.St.1945. But, of course, the grantees in the absence of an agreement to the contrary were compelled to pay taxes assessed and levied against the property thereafter. The best evidence as to when the weed-control tax was assessed and levied would be by the books of the county. These books were not introduced in evidence. Hence there is no competent testimony in the record that the so-called weed-control tax was a tax of 1947. It is probable that the assessor had in mind the provisions of Section 34-212, Wyo.Comp.St.1945, which provides as follows: 'The Board of County Commissioners shall annually determined the amount of such warrants drawn on the general fund for the purpose of this Act (§§ 34-201-34-239), and the succeeding year, shall levy a tax for the purpose of insect pest, plant disease or weed control sufficient in amount to reimburse said general fund for the money so paid out on such warrants, which said tax shall be levied upon all the property in the county and shall not exceed one mill on each dollar of assessed valuation. If there be no money in the general fund with which to pay such warrants, they shall be registered and bear interest in the same manner as other county warrants, but in such case the interest shall be computed and added to the amount for which such tax is levied.' Under this weed control statute the expenses incurred thereunder and paid out of the general fund in any one year are not sought to be reimbursed until the following year, and that by a tax levied in the latter year. Obviously a tax does not become a tax until duly levied. So that while in this case the amount of $80.32 was expended for weed control in 1947, no tax was levied therefor until 1948. It became a tax for 1948 and not for 1947. The parties are presumed to know the law, and in the absence of an agreement to the contrary there was no duty upon the plaintiffs to pay the amount mentioned in this cause of action of the cross-petition.

3. Attorney at Law as Competent Witness.

We shall accordingly...