First Natl. Bank of Green River v. Ennis

• Decision Date: 21 November 1932
• Docket Number: 1734
• Citation: 15 P.2d 1111,45 Wyo. 165
• Parties: FIRST NATL. BANK OF GREEN RIVER v. ENNIS, ET AL
• Court: Wyoming Supreme Court

15 P.2d 1111

45 Wyo. 165

FIRST NATL. BANK OF GREEN RIVER v. ENNIS, ET AL

No. 1734

Supreme Court of Wyoming

November 21, 1932

ERROR to District Court, Sweetwater County; V. J. TIDBALL, Judge.

On petition for rehearing.

For former opinion see 44 Wyo. 497, 14 P.2d 201.

Petition denied.

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

OPINION

RINER Justice.

Appellant has filed his petition for a rehearing in this case which has been carefully examined and the record again searched in the light of the points urged therein. As a result, we conclude that the interpretation now undertaken to be put by appellant upon the evidence contained in the record is quite untenable.

The chief argument advanced at this time appears to be that the water contracts and the moneys due under them were "pledged to" Kendall, Boyer and Howell. To this, as we view the matter, there are several conclusive answers. First, no such contention has heretofore been urged in the case. Points raised for the first time in a petition for re-hearing will ordinarily not be considered. Allith-Prouty Co. v. Wallace, 32 Wyo. 406, 234 P 144, 234 P. 504, 39 A. L. R. 513; Brotherhood of Locomotive Firemen & Enginemen v. Ginther, 35 Wyo. 280, 252 P. 852, 252 P. 1026; Watts v. Lawrence, 26 Wyo. 378, 188 P. 719, 188 P. 34. Second, the testimony of counsel for appellant as a witness for the plaintiff, itself discloses that the contention is without foundation. In the course of his cross-examination, the following questions and answers appear in the record:

"Q What I want to know is whether Kendall, Boyer and Howell or Putnum and Flaherty were holding the notes and water contracts which you now say should have been made out and which you were constantly insisting should be made out to the Eden Irrigation and Land Company?

"A When they did that, they did it contrary to my knowledge. As soon as I found out they were holding any such notes, I made them bring them and deposit them with me, and I kept them for the Eden Irrigation and Land Company.

"Q So you insisted that these notes and mortgages and contracts were the property of the Eden Irrigation and Land Company, and should be put into your hands for that company?

"A Certainly, and I held them for the company until the receivership.

"Q And then you turned them over to the receiver?

"A Turned them over to the receiver."

We are quite unable to perceive how there could be any pledge to Kendall, Boyer and Howell of these water contracts and notes for sums due under them, if this testimony be taken in its full import. This the trial court undoubtedly did. It is manifest that counsel thought that the several contracts between the Eden Irrigation and Land Company and Kendall Boyer and Howell required that the water contracts and the moneys due thereunder were the property of and should be held by the Eden Irrigation and Land Company. When that company passed into the hands of a receiver, counsel not only thought, but acted pursuant to the thought, that such contracts and moneys should be held by such receiver and they were accordingly turned over to him. In these views, we think coun...