F. E. Warren Mercantile Co. v. Myers

• Decision Date: 08 May 1935
• Docket Number: 1882
• Parties: F. E. WARREN MERCANTILE CO. v. MYERS
• Court: Wyoming Supreme Court

45 P.2d 5

48 Wyo. 232

F. E. WARREN MERCANTILE CO. v. MYERS

No. 1882

Supreme Court of Wyoming

May 8, 1935

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by the F. E. Warren Mercantile Company against Charles Alonzo Myers, who filed a counterclaim. From part of judgment adverse to it, plaintiff appeals. Heard on appellee's motion to dismiss, and on the merits.

Motion to dismiss appeal sustained.

For the appellant, there were briefs and the cause was argued orally by Edward T. Lazear, of Cheyenne.

A contract required to be in writing under the Statute of Frauds cannot be modified except in writing. L. R. A. 1917B 144; 17 A. L. R. 10; 29 A. L. R. 1095, 80 A. L. R. 539. The contract in question was for the sale of real estate and was required to be in writing. Section 47-101, R. S. One cannot sue for a recission of a contract and also for damages for breach thereof. Barquin v. Hall Oil Company, 28 Wyo 174. The contract in question is not divisible. 13 C. J. 561 et. seq. The cross-petition of defendant does not state a cause of action and there was no evidence to support a judgment for cross-plaintiff. It is submitted that the lower court should have directed the jury to bring in a verdict for the plaintiff on defendant's cross-petition, and that having failed to do so, the court still should have granted plaintiff's motion for judgment notwithstanding the verdict.

For the respondent, in support of the motion to dismiss and on the merits, there was a brief and the cause was argued orally by C. E. Lane, of Cheyenne.

The notice of appeal does not state on its face to what court or place appellant is trying to appeal. It is therefore insufficient. Dietrich v. Steam Dredge, 14 Montana 264; Holton v. Holton, 129 P. 532. The attempted appeal should be dismissed, for the reason that it is from only part of the judgment and not from the entire judgment. There is no statute directly authorizing an appeal from a part of a judgment. The general rule is that the appeal must be taken from the whole judgment. Barkley v. Logan, 2 Mont. 296; Plaisted v. Nowlan, 2 Mont. 359; Cottier v. Sullivan, (Wyo.) 31 P.2d 675. An original and cross suit are but one cause, and but one judgment should be rendered. Simpson v. McKay, 3 Thomps. & C. (N Y.) 65; Anderson v. Moberly, 46 Mo. 191; Hall v. Younts, 87 N.C. 285.

Edward T. Lazear in resistance to motion to dismiss.

Where there is but one court to which an appeal may be taken, it is not necessary to name the court in the notice of appeal. The only exception to this rule is found in the State of Oregon. In re Dixon's Estate, 241 P. 333. The omission is not necessarily vital. 3 C. J. 1224; Starkweather v. Bell, 80 N.W. 183; McConnell v. Kaufman, (Wash.) 29 P. 1053; Messmer v. Block, 76 N.W. 598; Student v. Goldapp, (Ore.) 259 P. 207. The Wyoming statute does not require the name of the Supreme Court to be used. Section 89-4902; Brown v. Calloway, 75 P. 630. There was but one court to which the appeal could be taken. The appeal statute says: "The Notice of Appeal shall state whether the appeal is from the whole or a part of the judgment, etc., and if from a part only, shall specifically state what part." This is exactly what we have done, and also it is exactly what the respondent did in starting his appeal. That he did not perfect his appeal is no fault of ours. Respondent's brief on this question is hardly adequate to sustain his position. In the first part, he only sets forth a model form as prescribed by the State of Montana, and in the second part he makes no mention of our own statutes, but only cites a few random opinions to the effect that an original and cross suit are but one cause.

OPINION

PER CURIAM.

On August 22, 1929, plaintiff and defendant entered into a written contract, by the terms of which plaintiff sold to the defendant Lot 3, Block 164, of Cheyenne, Wyoming, and a certain frame house then located on Lot 7, Block 357, of Cheyenne, for the sum of $ 1000, payable in five yearly instalments of $ 200 each. It was agreed that defendant should move the frame house onto the lot sold to the defendant not later than February 1st, 1930. The house was not to be moved immediately because it was then occupied by a tenant, and plaintiff did not want to dispossess him from the property at that time. It appears that it was necessary to obtain a permit from the City of Cheyenne in order to move the house. Defendant claims that this permit was to be procured by the plaintiff, but this is denied by the latter. In any event, when defendant undertook to move the house in January, 1930, the city refused to grant a permit. As a result, the house was, with plaintiff's consent or according to its request, torn down by the defendant, and little was realized out of the debris. Thereafter, the defendant made two payments on his contract, one for $ 200, and one for $ 400. He refused to pay more. Thereupon this action was commenced to recover the balance due on the contract, the plaintiff tendering a warranty deed to the lot sold to defendant. Defendant answered, and claimed that the plaintiff breached the contract by not procuring the permit, and that he was damaged in the sum of $ 1465. The case was tried to a jury. They returned two verdicts. One was in favor of the plaintiff on its petition in the sum of $ 400 plus interest, making a total, as we understand it, of $ 574.00. The other verdict was in favor of the defendant on his cross-petition, fixing the amount of his recovery in the sum of $ 574.00. Judgment was entered by the court on the verdict, and the sums recoverable were stated separately, as in the verdict. In other words, the court gave judgment in favor of the plaintiff for $ 400 plus interest, and the costs, and judgment for the defendant in the sum of $ 574 and the costs. The court also ordered that plaintiff should immediately deliver to the defendant a warranty deed to lot 3, block 164 above mentioned. The former undertook to take an appeal from that part of the judgment which found in favor of the defendant in the sum of $ 574 and costs, and from that part which directed the delivery of a warranty deed to the property above mentioned, the notice of appeal specifically stating that plaintiff appealed from that part only, leaving, accordingly, intact that part which found in favor of plaintiff in the sum of $ 400 and interest. The defendant undertook to appeal from that part of the judgment which was favorable to plaintiff. But he abandoned his appeal, and thereupon filed a motion to dismiss plaintiff's appeal on the ground that it was not taken from the whole of the judgment.

The notice of appeal herein was filed prior to our decision in Cottier v. Sullivan, (Wyo.) 47 Wyo. 72, 31 P.2d 675. An appeal from the whole of the judgment would probably have been taken if that decision had been known, for we think that it governs the case at bar, and that the motion to dismiss must be sustained.

Counsel was probably in part led into his error by reason of the fact that there were two verdicts, and the court, in its judgment, gave a separate recovery to the plaintiff, and a separate recovery to the defendant. But that is merely form. The separate recoveries are, in effect, but findings, or separate decisions of separate issues, and no appeal, as we held in the case above cited, can be taken therefrom. The effect of the recoveries, one offsetting the other, is that the total judgment is in reality but one, and that for the defendant and against the plaintiff. A judgment of that character should, in fact, according to practically all of the authorities, have been entered herein. It is said in 23 Standard Ency. of Proc., 806:

"Where an established counterclaim is less than plaintiff's demand, the plaintiff has judgment for the residue only; if it equals the plaintiff's claim, the judgment must be for the defendant, and in case it exceeds what is claimed by the plaintiff, the defendant has judgment for the excess."

To the same effect are: 33 C. J. 1193-94, note 38 and a number of cases cited; 57 C. J. 516. If the court had followed the foregoing rule, no appeal from part of the judgment could have been taken; and it would seem to be clear that a violation of...