Fryer v. Campbell, 1832

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtRINER, Justice.
Citation46 Wyo. 491,28 P.2d 475
Docket Number1832
Decision Date16 January 1934
PartiesFRYER v. CAMPBELL

28 P.2d 475

46 Wyo. 491

FRYER
v.
CAMPBELL

No. 1832

Supreme Court of Wyoming

January 16, 1934


Proceeding between George Fryer and Arthur Campbell. There was a judgment for Campbell, and Fryer brings error. Heard on motion by defendant in error, to strike the bill of exceptions and petition in error and dismiss the proceedings in error and motion of plaintiff in error for leave to file an amended petition in error.

Leave to file amended petition in error granted.

The motion to strike and dismiss was submitted on the brief of Armstrong & Armstrong and also argument by Mr. L. E. Armstrong of Rawlins.

The order presented for review is not a final order; the bill of exceptions is not properly certified as containing all the evidence in the cause; the record is insufficient to authorize this court to review the order and judgment complained of; the abstract of record filed herein is insufficient under rule 37 of this court. A petition in error which does not describe the judgment or order sought to be reviewed, is defective. Board of Commissioners v. Shaffner, 10 Wyo. 181; Fitzpatrick v. Rogan, 27 Wyo. 388. Where the petition fails to set out the judgment or record of any case, it must be dismissed. Higgins v. Higgins (Kan. App.) 52 P. 906; Farmers' Bank v. Bank (Okla.) 140 P. 1150; Dixon v. Watson, (Tex. Civ. App.) 91 S.W. 618; Mills Company v. Tanner (Mo. App.) 271 S.W. 831; Riordan v. Horton, 16 Wyo. 363; Hall Oil Company v. Barquin, 28 Wyo. 151. An order overruling a motion for new trial is not appealable. Mitter v. Coal Company, 27 Wyo. 72; Young v. Shallenberger (Ohio) 41 N.E. 518; Hume v. Bowie, 148 U.S. 245; Newcomb v. Wood, 97 U.S. 581; White v. Geinger (Ore.) 139 P. 572; 3 C. J. 437. The certificate does not state that the bill contains all the evidence, Davis v. Minnesota Convention (Wyo.) 16 P.2d 48, and is not signed by the Judge. Seng v. State, 20 Wyo. 222; Fishback v. Bramel, 6 Wyo. 293; Howard v. Bowman, 3 Wyo. 311; McCague Inv. Co. v. Mallin, 23 Wyo. 201; Royal Insurance Co. v. Walker Company, 23 Wyo. 264; Callahan v. Houck Co. 14 Wyo. 201; Wyoming v. Holliday Company, 3 Wyo. 386. The record should not be permitted to be withdrawn for amendment. State v. Allen, 42 Wyo. 51. The trial court cannot amend the bill after expiration of the term. Stockgrowers' Bank of Wheatland v. Gray, 22 Wyo. 482. There must be a specific assignment of error relied on. Wolcott v. Bachman, 3 Wyo. 335. A ruling on a demurrer is not a reviewable order. Perkins v. McDowell, 3 Wyo. 328; Dobson v. Owens, 5 Wyo. 85. Errors not argued will be considered waived. Schmidt v. Bank, 29 Wyo. 260; Hogan v. Peterson, 8 Wyo. 549; Grimm v. Town of Washburn, 75 N.W. 984; Goldberg v. Title Company (S. D.) 123 N.W. 266; Cleveland Company v. True (Ind. App.) 95 N.E. 328. An insufficient record requires dismissal. Groves v. Groves, 9 Wyo. 173; Schmidt v. Bank, supra; Sioux City Seed Co. v. Montgomery, 42 Wyo. 170; Fitzpatrick v. Rogan, 27 Wyo. 388; Royal Ins. Co. v. Walker Company, supra. The abstract of record does not comply with rule 37 of this court. Brewer v. Folsom Co., 43 Wyo. 433. Unless a petition in error is filed within one year from rendition of judgment, the court does not acquire jurisdiction. Burnett v. Giblin, 38 Wyo. 421; Iven v. Jessup, 20 Wyo. 90; Court rule No. 37; 4 C. J. 399; Atchison v. Conlon (Kans.) 94 P. 148; Beels v. Investment Company (Nebr.) 141 N.W. 812. Noncompliance with rule requiring abstract of record is ground of dismissal. Simpson v. Association, (Wyo.) 19 P.2d 958. In dismissal of proceedings in error, the judgment below is affirmed and the penalty provided by Section 89-4809, R. S. 1931, should be assessed. The motion for a new trial should be included in the bill. Board of Commissioners v. Hinton, 1 Wyo. 358; Mosher v. Hilliard F. & L. Company, 1 Wyo. 359; White v. Company, 1 Wyoming 399. The application for leave to amend the petition in error should be denied. The application fails to show that the amendatory facts were unknown prior thereto. This is a requirement of the Code. Section 89-1063, R. S. 1931; Jones v. Parker, 38 Wyo. 241; Griggs v. Meek, 37 Wyo. 282; U. S. F. & G. Company v. Parker, 20 Wyo. 29; Callahan v. Houck Company, supra; Riordan v. Horton, supra; Dixon v. Watson (Tex. Civ. App.) 91 S.W. 618; Matthews v. Nefsy, 13 Wyoming 238. Filing of amended petition after demurrer filed, confesses the demurrer. Hanson v. Goodrich, 181 P. 739; 49 C. J. 562.

For plaintiff in error in support of application for leave to file amended petition in error, the cause was submitted on the brief and oral argument of Mr. N. R. Greenfield and Harold M. Johnson of Rawlins.

In support of application to amend petition in error, we cite the case of Riordan v. Horton, 16 Wyo. 363. Petition in error complies with Rule 11 of this court. The time for instituting proceedings in error has not expired, and plaintiff in error should be allowed to amend his petition in error, if deemed insufficient. Amendments in furtherance of justice, authorized by Section 89-1063, R. S. 1931, applies to proceedings in error. The application to amend was promptly made within the year allowed for instituting original proceedings in error, and should be granted. Western Alfalfa Milling Company v. Worthington, 29 Wyo. 56; Jones v. Parker, 38 Wyo. 241. The motion to strike and dismiss should be denied.

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

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13 practice notes
  • Diamond Cattle Co. v. Clark, 1994
    • United States
    • United States State Supreme Court of Wyoming
    • December 23, 1937
    ...197 P. 565; Board of Commissioners v. Shaffner, (Wyo.) 68 P. 14; Hall Oil Co. v. Barquin, (Wyo.) 201 P. 160; Fryer v. Campbell, (Wyo.) 28 P.2d 475. The requirement that the petition in error be filed is jurisdictional. North Laramie Land Co. v. Hoffman, (Wyo.) 184 P. 226; Sterling v. Bouche......
  • Sylvester v. Armstrong, 2066
    • United States
    • United States State Supreme Court of Wyoming
    • December 5, 1938
    ...correct. This abstract contains no such certificate. Dinkelspeel v. Lewis, 50 Wyo. 380; Tibbals v. Graham, 50 Wyo. 277; Fryer v. Campbell, 46 Wyo. 491; Chemical Co. v. Board of Commissioners (Wyo.) 65 P.2d 1103. The abstract should show the dates the pleadings were filed. Bruce v. Endicott ......
  • Civic Ass'n. of Wyoming v. Railway Motor Fuels, Inc., 2196
    • United States
    • United States State Supreme Court of Wyoming
    • August 19, 1941
    ...in this court. Rule 37 of this court; Simpson v. Occidental Building & Loan Association, 45 Wyo. 425, 19 P.2d 958; Fryer v. Campbell, 46 Wyo. 491, 28 P.2d 475; Scott v. Ward, 49 Wyo. 243, 54 P.2d 805. It results that the judgment of the district court of Laramie County should be and it ......
  • Farmers State Bank of Riverton v. Investors Guaranty Corp., 1883
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 1935
    ...in support of motions to dismiss, we do not believe are in point, the facts in the present case being considered. In Fryer v. Campbell, 46 Wyo. 491, permission was given to amend the abstract. And in St. Clair v. St. Clair, 46 Wyo. 446, the court disposed of the case on the merits, calling ......
  • Request a trial to view additional results
13 cases
  • Diamond Cattle Co. v. Clark, 1994
    • United States
    • United States State Supreme Court of Wyoming
    • December 23, 1937
    ...197 P. 565; Board of Commissioners v. Shaffner, (Wyo.) 68 P. 14; Hall Oil Co. v. Barquin, (Wyo.) 201 P. 160; Fryer v. Campbell, (Wyo.) 28 P.2d 475. The requirement that the petition in error be filed is jurisdictional. North Laramie Land Co. v. Hoffman, (Wyo.) 184 P. 226; Sterling v. Bouche......
  • Sylvester v. Armstrong, 2066
    • United States
    • United States State Supreme Court of Wyoming
    • December 5, 1938
    ...correct. This abstract contains no such certificate. Dinkelspeel v. Lewis, 50 Wyo. 380; Tibbals v. Graham, 50 Wyo. 277; Fryer v. Campbell, 46 Wyo. 491; Chemical Co. v. Board of Commissioners (Wyo.) 65 P.2d 1103. The abstract should show the dates the pleadings were filed. Bruce v. Endicott ......
  • Civic Ass'n. of Wyoming v. Railway Motor Fuels, Inc., 2196
    • United States
    • United States State Supreme Court of Wyoming
    • August 19, 1941
    ...in this court. Rule 37 of this court; Simpson v. Occidental Building & Loan Association, 45 Wyo. 425, 19 P.2d 958; Fryer v. Campbell, 46 Wyo. 491, 28 P.2d 475; Scott v. Ward, 49 Wyo. 243, 54 P.2d 805. It results that the judgment of the district court of Laramie County should be and it is a......
  • Farmers State Bank of Riverton v. Investors Guaranty Corp., 1883
    • United States
    • United States State Supreme Court of Wyoming
    • June 6, 1935
    ...in support of motions to dismiss, we do not believe are in point, the facts in the present case being considered. In Fryer v. Campbell, 46 Wyo. 491, permission was given to amend the abstract. And in St. Clair v. St. Clair, 46 Wyo. 446, the court disposed of the case on the merits, calling ......
  • Request a trial to view additional results

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