Foote v. Smith

• Decision Date: 13 November 1899
• Citation: 58 P. 898,8 Wyo. 510
• Parties: FOOTE v. SMITH, ET AL
• Court: Wyoming Supreme Court

58 P. 898

8 Wyo. 510

FOOTE v. SMITH, ET AL

Supreme Court of Wyoming

November 13, 1899

RESERVED questions from the District Court, Johnson County HON. JOSEPH L. STOTTS, Judge.

Motion to discontinue, upon dismissal in the District Court.

G. E A. Moeller, W. S. Metz, and Gibson Clark, for plaintiff.

Clark &amp Fisher and C. H. Parmelee, for defendants.

OPINION

PER CURIAM.

This cause was pending in the district court for Johnson County. Upon consideration of the separate general demurrers filed by two of the defendants to the petition, the district court reserved certain important and difficult questions deemed to arise therein, for the decision of this court.

Before a hearing thereon, plaintiff files a motion for the discontinuance of further consideration of the cause in this court, for the reason that on October 5, 1899, he dismissed the action in the district court. Filed with the motion is a certified copy of a journal entry of said court of the date last aforesaid showing that the plaintiff then came and entered a dismissal of the action without prejudice. Notice of the motion to discontinue in this court was served upon counsel for the defendants, but they have not appeared to contest the same.

The motion will be sustained; further consideration of the cause discontinued in this court, and the clerk ordered to return the original papers to the district court.

In Veazie v. Wadleigh, 36 U.S. 55, 11 Peters 55, 9 L.Ed. 630, a similar motion was granted by the Supreme Court of the United States in a cause sent to that court upon a division of opinion of the judges of the circuit court. The opinion was delivered by Mr. Justice Story, who said in part: "It is clear that the statute does not, upon the certificate of division, remove the original cause into this court; on the contrary, it is left in the possession of the court below for the purpose of further proceedings, if they can be had without prejudice to the merits; so that in effect the certified questions only, and not the original cause, are removed to this court. In the next place, looking to the intent and objects of the provision, which are to enable the court below to proceed to a final adjudication of the merits of the cause, it seems equally clear that if the original cause is entirely withdrawn from the cognizance of the circuit court by discontinuance or otherwise, there is no ground upon which this court should be required to proceed to decide the certified questions, since they are thus become mere abstract questions. They are but incidents to the original cause, and ought to follow the fate of their principal."

Under the statute authorizing the district courts to reserve for the decision of this court important and difficult questions arising in a cause, it has been held that questions, and not cases, are authorized to be certified to this court; and that the case itself is not here...