Durell v. Abbott

• Decision Date: 16 April 1896
• Parties: DURELL v. ABBOTT ET AL
• Court: Wyoming Supreme Court

44 P. 647

6 Wyo. 265

DURELL v. ABBOTT ET AL

Supreme Court of Wyoming

April 16, 1896

6 Wyo 265 at 268.

Original Opinion of March 3, 1896, Reported at: 6 Wyo. 265.

Rehearing denied.

CONAWAY JUSTICE. GROESBECK, C. J., and POTTER, J., concur.

OPINION

ON PETITION FOR REHEARING.

CONAWAY JUSTICE.

The petition for rehearing sets up several errors of this court in its short opinion delivered on the original hearing in not understanding the authorities cited nor the arguments offered by plaintiff in error. As such errors do not go to the merits of the case, they will not be discussed.

The brief on petition for rehearing, however, states that plaintiff in error merely insisted that the proceedings of the trial court in rendering judgment on the default after continuing the cause for the term, "could not prevent the plaintiff in error from having the ruling of the court below upon the demurrer reviewed by the supreme court, and could not prejudice the plaintiff in error before the supreme court." It is thus apparent that it is the opinion of counsel for plaintiff in error that the only question before this court is, "Did the trial court err in overruling the demurrer to the petition of plaintiff in error?" This is also our opinion, and we did consider that question. As it seems that we have failed to make our meaning clear, we will now consider it further. The charging part of the petition demurred to is in the following words:

"1. That the plaintiffs are now and for a long time have been, and are entitled to be, in the possession of certain real property, situated, lying, and being in the county of Laramie and State of Wyoming, known and described as follows, to wit: Lot numbered one in section numbered twenty-three, in township numbered fourteen, north of range numbered sixty-seven, west of the sixth principal meridian."

"2. That the said plaintiffs claim title in fee to the said premises, and that the defendant aforesaid claims an estate or interest therein adverse to the said plaintiffs."

"3. That the claim for said defendant is without any right whatever, and that the said defendant has not any estate, right, title, or interest whatsoever in said land or premises, or any part thereof."

The statute under which this action was brought is the following:

"An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate, or interest therein adverse to him, for the purpose of determining such estate or interest." (Rev. Stat., Sec. 2985.)

Under such a statute, the following is an approved form of petition: "Plaintiff is in actual possession of the following-described real estate situated in said county of . . . (describe the real estate)."

"The defendant claims an estate or interest therein adverse to plaintiff's right." This is followed by prayer for relief. Bates on Code Pleading, 659. The petition in the case at bar...