Garber v. Spray, 885

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtPOTTER, CHIEF JUSTICE.
Citation164 P. 840,25 Wyo. 52
Decision Date07 May 1917
Docket Number885
PartiesGARBER v. SPRAY

164 P. 840

25 Wyo. 52

GARBER
v.
SPRAY

No. 885

Supreme Court of Wyoming

May 7, 1917


ERROR to the District Court of Platte County; WILLIAM C. MENTZER, Judge.

Action in justice court by Verna Spray against L. A. Garber. From a judgment of the District Court affirming judgment of the justice, defendant appeals.

Judgment affirmed.

Kinkead & Henderson, for plaintiff in error.

The petition is insufficient to support the judgment; the findings of the justice are insufficient to support the judgment; the amount in controversy was in excess of the jurisdiction of the justice; pleadings are essential to make an issue in justice court. (Y. M. C. A. of Dallas v. Schow Bros. (Tex.), 161 S.W. 913.) The cause of action must be shown. (Prest-O-Lite Co. v. Widrig (Mich.), 146 N.W. 178; Watkins v. Ford (Mich.), 37 N.W. 300.) Written pleadings are governed by the essential rules. (Bell-Wayland Co. v. Nixon (Okla.), 156 P. 1195.) The petition in justice court must set forth plaintiff's cause of action. (Turner v. McCook, 77 Mo.App. 196; Powell v. Alfred, 39 S.E. 449; Smith v. Stone, et al., 21 Wyo. 62; Patton v. Elk River Navigation Co., 13 W.Va. 259; Kingsley v. Bill, 9 Mass. 198; Lyman v. Dale (Mo.), 171 S.W. 352; Houston & T. C. R. R. Co. v. Red Cross Farm (Tex.), 53 S.W. 834; Barbee v. Taylor, 1 Mich. 351; Prall v. Waldron, 2 N.J.L. 88.) In actions of tort, pleadings must be specific. (King v. Murphy, 151 N.Y.S. 476.) The material facts must be shown by direct averments. (Clendening v. Guise, 8 Wyo. 91; K. P. R. R. v. Taylor, 17 Kan. 566; St. Louis & S. F. R. R. Co. v. McReynolds, 24 Kan. 267; Barrackman v. Girard, 26 Kan. 284; St. Louis & S. F. R. R. Co. v. Hoff (Kan.), 92 P. 539; Hays v. Lewis, 17 Wis. 210; Stoflet v. Marker, 34 Mich. 313.) Material facts must be definitely stated. (Smith v. Stone, et al., 21 Wyo. 62; Clendening v. Guise, 8 Wyo. 91; City of Rawlins v. Jungquist, 16 Wyo. 403; Wearne v. France, 3 Wyo. 273; Elwood Gas & Oil Co. v. Becker (Ind.), 41 N.E. 1063; Corbin v. Oldham's Adm'r., 1 Ky. Law Repts. 327; Lake Erie & W. R. R. Co. v. Holland (Ind.), 69 N.E. 138; Barber v. Taylor, 1 Mich. 351.) Objection to insufficiency of pleadings to state a cause of action may be taken at any time. (Becker, et al., v. Hopper, et al., 22 Wyo. 237; Armstrong v. Gibson, 31 Wis. 61; Evans v. Cheyenne C. S. & B. Co., 21 Wyo. 184; Prest-O-Lite Co. v. Widrig (Mich.), 146 N.W. 178; Goodwin v. Cadwallader (Ind.), 61 N.E. 938; 3 Corpus Juris, Sec. 777.) The findings must support the judgment. (McNamara v. O'Brien, 2 Wyo. 447; Horn v. Lupton (Ind. 1914), 105 N.E. 237; Pangburn v. Buick Motor Co. (N. Y. 1914), 105 N.E. 423; Wysong v. Nealis (Ind.), 41 N.E. 388; Graham v. The State, 66 Ind. 386; Kinsey v. Green, 51 Cal. 379; Downing v. Graves, 55 Cal. 545; Blankenship v. Whaley (Calif.), 57 P. 79; Gaffey v. N.W. Mutual Life Ins. Co. (Neb.), 98 N.W. 826; Maynard v. Mutual Life Ins. Assn. (Utah), 47 P. 1030; N. P. R. R. Co. v. Reynolds, 50 Cal. 90; Campbell v. Buckman, 49 Cal. 362; 2 Starkie Ev. 183-4; Clark v. Clark (Tex.), 51 S.W. 337; Hoodless v. Jernigan, 35 So. 670; Wiley v. Lovely, 46 Mich. 83; Spears v. Wise, 65 So. 786; Hollinger v. Big Sespe Oil Co. (Cal.), 151 P. 369.) A petition in trespass, if it fails to state that cattle were on plaintiff's lands, in violation of his rights, fails to state a cause of action. (Cosgriff Bros. v. Miller, 10 Wyo. 190; Martin v. Platte Valley Sheep Co., 12 Wyo. 432; Minter v. Gose, 13 Wyo. 178; Hardman v. King, 14 Wyo. 503; Painter v. Stahley Bros., 15 Wyo. 510; Glen Jean R. R. Co. v. Kanawha, 47 W.Va. 725; 38 Cyc. 1080.) The defect is not cured by verdict. (Cleveland R. R. Co. v. Stackhouse, 10 Ohio St. 567; Nye v. Bill Nye Co. (Ore.), 71 P. 1043; Thornton v. Kaufman (Mont.), 88 P. 796; Goodwine v. Cadwallader (Ind.), 61 N.E. 938.) A judgment in favor of a tenant in common does not prevent his co-tenant from recovering from the trespasser the damages he has sustained by such trespass. (38 Cyc. 120; Gillum v. St. Louis, &c. R. R. Co., 4 Tex. Civ. App. 622; Jackson v. Moore, 87 N.Y.S. 1101; Kingsley v. Bill, 9 Mass. 198.) An omission of material allegations is fatal. In tort plaintiff's proofs must be restricted to the allegations of his complaint. The petition in this case merely stated that defendant's cattle had damaged plaintiff's crops, without showing any circumstances, or in what manner the damage was done. There was a wrongful splitting of the causes of action. The judgment rendered was in excess of the amount for which a justice has jurisdiction.

Marion A. Kline and Oscar O. Natwick, for defendant in error.

Errors not excepted to will not be reviewed. (Syndicate Improvement Co. v. Bradley, 6 Wyo. 171, 43 P. 79, 44 P. 60.) Defendant did not except to the findings or judgment and they are not before this court for review. (Hudson Coal Co. v. Hauf, 18 Wyo. 435.) The amount in controversy, $ 200.00, was within the jurisdiction of the justice. (24 Cyc. 464; Knocke v. Perry, 90 Mo.App. 483; Hull v. Webb, 78 Ill.App. 617; Wedgewood v. Parr, 112 Ia. 514, 84 N.W. 528; Cilley v. Van Patten, 68 Mich. 80, 35 N.W. 831; Todd v. Gates, 20 W.Va. 464.) In the Wyoming cases cited by plaintiff in error the alleged trespasses were committed upon unenclosed lands; in the present case, the enclosure was broken down and the trespassing stock driven in. The Wyoming cases cited, therefore, support the position of defendant in error. This is particularly true of Hudson Coal Co. v. Hauf, supra, which is supported by the following cases: Everett v. Irwin (Ind.), 94 N.E. 352; Fauble v. Stewart, 35 Ia. 379; Railway Co. v. Woodard (Ind.), 41 N.E. 544; Anderson v. Lipe (Ind.), 16 N.E. 833; Lippencott v. Smith, 4 N.J.L. 95; Gibbs v. Railway Co., 11 Mo.App. 459; Boefer v. Sheridan, 42 Mo.App. 226; Twine v. Kilgore (Okla.), 39 P. 388; Galbraith v. McCormick, 23 Kan. 706; Brown v. Thompson (Ind.), 90 N.E. 631; Clifford v. Meyer (Ind.), 34 N.E. 23; Gittings v. Baker, 2 Ohio St. 26; Stull v. Wilcox, 2 Ohio St. 572. Every reasonable presumption and intendment will be used to sustain the pleadings after verdict; if a cause of action can be gathered from all the papers that is sufficient. (Nott v. Johnson, 7 Ohio St. 270; Bethel v. Woodworth, 11 Ohio St. 393; Jarmusch v. Otis, &c. Co., 3 Ohio C. C. (N. S.) 1; Hallam v. Jacks, 11 Ohio St. 692.) A complaint sufficient to apprise a person of the nature of plaintiff's demand is sufficient. (Hanson v. Gronlie, 115 N.W. 666; Morrison v. Railroad Co. (Ark.), 112 S.W. 975; Milholland v. Pence, 11 Ind. 203; Fockstein v. Bimmerle, 131 S.W. 126.) An omission of allegations of negligence will not warrant reversal. (Atlantic Coast Line Co. v. Lane and Autry (Ga.), 71 S.E. 918; Leach v. Lynch, 128 S.W. 795.) Where no formal allegations are required and no objections are made to a pleading, any pleading indicating the general nature of plaintiff's claim is sufficient. (Daniels v. Clegg, 28 Mich. 32; Van Cleave v. St. Louis (Mo.), 60 S.W. 1091; Wilcox v. Railroad Co. (Mich.), 5 N.W. 1006.) Cases cited by plaintiff in error do not sustain his contention.

POTTER, CHIEF JUSTICE. BEARD, J., concurs. SCOTT, J., did not sit.

OPINION [164 P. 841]

[25 Wyo. 57] POTTER, CHIEF JUSTICE.

This case is here on error for the review of a judgment of the district court in and for Platte County affirming on petition in error the judgment of a justice of the peace. The action was commenced before the justice of the peace by the defendant in error, Verna Spray, the summons reciting that the plaintiff "sues on a civil action to recover the sum of two hundred dollars, same being for damages done to a crop of rye owned by plaintiff by reason of trespass thereon by defendant's cattle." Both parties appeared at the time specified in the summons, and the plaintiff thereupon filed a written petition alleging that she is and at all times during the year 1915 was the owner of a certain described tract of land in Platte County, and a one-half interest in a crop of rye growing thereon; that the defendant is the owner of a large number of range cattle; and that "on the 29th day of May, 1915, the defendant took down the wires and broke down the fence which enclosed the field in which said rye was growing and drove a large number of his cattle into said field of rye, and left said cattle for many hours in said field of rye to eat and graze on the same, and at many other times during the year of A. D. 1915 the said defendant took down the wires of said fence and tore down said fence and drove his cattle upon said field of rye and left them there to eat and graze on the same, until said field of rye was completely destroyed. That plaintiff's one-half interest in said rye was worth the reasonable sum of two hundred dollars and upwards." There was a prayer for judgment for two hundred dollars and costs. The plaintiff was represented at the trial [25 Wyo. 58] in the justice's court by an attorney, and defendant was present, but without an attorney. After the examination of witnesses for the plaintiff and defendant, respectively, a jury having been waived, and all the evidence had been received, judgment was rendered in favor of the plaintiff for $ 150 damages, the finding and judgment being entered in the docket as follows: "This court found upon the evidence given in the above case, that the L. A. Garber defendant cattle had damaged the Verna Spray, plaintiff, field of rye, therefore this court rendered judgment for damage against the defendant and in favor of plaintiff for $ 150.00 dollars and cost of this action." The case was tried and judgment rendered on September 24, 1915, and on the fifth day thereafter the defendant filed with the justice a motion to set aside the judgment, stating as grounds therefor that the amount in controversy was $ 400 and therefore beyond the jurisdiction of the justice's court, that there was a defect of parties plaintiff, and that the petition and...

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4 practice notes
  • Wood v. Wood, 889
    • United States
    • United States State Supreme Court of Wyoming
    • May 7, 1917
    ...one of several things that might influence a testator without being undue, viz.: "sympathy, kindness, attention, attachment or affection, [25 Wyo. 52] gratitude for past services, desire of gratifying another's wishes, or of relieving distress, claims of kindred and family, love, esteem, so......
  • Rienecker v. Lampman, 2104
    • United States
    • United States State Supreme Court of Wyoming
    • December 12, 1939
    ...are waived. Imp. Co. v. Bradley, 6 Wyo. 171; Riordan v. Horton, 16 Wyo. 363; National Bank v. Ludvigsen, 8 Wyo. 230; Barber v. Spray, 25 Wyo. 52; Worland v. Davis, 31 Wyo. 171; Ins. Co. of Hartford v. Lloyd, 40 Wyo. 44; In re Demorest's Estate, 41 Wyo. 189; International Harvester Co. v. Le......
  • Pierce v. Rothwell, 1448
    • United States
    • United States State Supreme Court of Wyoming
    • April 24, 1928
    ...and is therefore waived, Sup. Court Rule 14; Riordan v. Horton, 16 Wyo. 363; C. B. & Q. R. R. Co. v. Lampman, 18 Wyo. 106; Garber v. Spray, 25 Wyo. 52. The alleged agreement was within the statute of frauds, 4726 C. S.; 6 Fletcher Corp. 6505; plaintiffs relied on provisions of Sec. 4726, a ......
  • Farmers' State Bank of Riverton v. Johnson, 1286
    • United States
    • United States State Supreme Court of Wyoming
    • March 8, 1927
    ...liberally. Strict formality and accuracy are not required, even in the plaintiff's statement of the cause of action. Garber v. Spray, 25 Wyo. 52, 164 P. 840; Hudson Coal Co. v. Hauf, 18 Wyo. 425, 434, 109 P. 21. We think the answer in this case did not fail to raise the issue that plaintiff......
4 cases
  • Wood v. Wood, 889
    • United States
    • United States State Supreme Court of Wyoming
    • May 7, 1917
    ...one of several things that might influence a testator without being undue, viz.: "sympathy, kindness, attention, attachment or affection, [25 Wyo. 52] gratitude for past services, desire of gratifying another's wishes, or of relieving distress, claims of kindred and family, love, esteem, so......
  • Rienecker v. Lampman, 2104
    • United States
    • United States State Supreme Court of Wyoming
    • December 12, 1939
    ...are waived. Imp. Co. v. Bradley, 6 Wyo. 171; Riordan v. Horton, 16 Wyo. 363; National Bank v. Ludvigsen, 8 Wyo. 230; Barber v. Spray, 25 Wyo. 52; Worland v. Davis, 31 Wyo. 171; Ins. Co. of Hartford v. Lloyd, 40 Wyo. 44; In re Demorest's Estate, 41 Wyo. 189; International Harvester Co. v. Le......
  • Pierce v. Rothwell, 1448
    • United States
    • United States State Supreme Court of Wyoming
    • April 24, 1928
    ...and is therefore waived, Sup. Court Rule 14; Riordan v. Horton, 16 Wyo. 363; C. B. & Q. R. R. Co. v. Lampman, 18 Wyo. 106; Garber v. Spray, 25 Wyo. 52. The alleged agreement was within the statute of frauds, 4726 C. S.; 6 Fletcher Corp. 6505; plaintiffs relied on provisions of Sec. 4726, a ......
  • Farmers' State Bank of Riverton v. Johnson, 1286
    • United States
    • United States State Supreme Court of Wyoming
    • March 8, 1927
    ...liberally. Strict formality and accuracy are not required, even in the plaintiff's statement of the cause of action. Garber v. Spray, 25 Wyo. 52, 164 P. 840; Hudson Coal Co. v. Hauf, 18 Wyo. 425, 434, 109 P. 21. We think the answer in this case did not fail to raise the issue that plaintiff......

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