Gramm v. Fisher

Decision Date18 February 1892
PartiesGRAMM v. FISHER. [1]
CourtWyoming Supreme Court

Error to district court, Carbon county.

Replevin by Otto Gramm against Charles F. Fisher. There was a finding by the court in favor of plaintiff, and defendant brings error. Petition in error dismissed.

Petition dismissed and cause remanded.

Nellis Corthell, for plaintiff in error.

Lacey &amp Van Devanter, for defendant in error.

MERRELL J. CONAWAY and SCOTT, JJ., concur.

OPINION

MERRELL, J.

There is a motion of defendant in error in this case to dismiss the proceeding, and to dismiss the petition in error, for the reason that no judgment or final order was ever made or entered in the court below. It is claimed that the proceeding in error is premature. The Code provides (section 3128) that "a judgment rendered or final order made by the district court may be reversed, vacated, or modified by the supreme court, for errors appearing in the record." A judgment is defined as follows: "A judgment is the final determination of the rights of the parties in an action; and a direction of a court or judge, made or entered in writing and not included in a judgment, is an order." Section 2657. A final order, which may be appealed from, is defined in these words: "An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, is a final order, which may be vacated, modified, or reversed as provided in this chapter." Section 3126. In this case it is sought to reverse what purports to be neither an order nor a judgment. This proceeding in error is prosecuted by the plaintiff in error, by his petition in error, from findings of fact and findings of law, both by the court. These findings are not in the form of an order, and cannot be considered as constituting an order, and especially not a final order, which may be vacated by proceedings in error. They do not "determine the action and prevent a judgment." They may be sufficient to authorize a judgment, and may actually authorize a judgment; but they certainly do not prevent it. But the principal contention of plaintiff in error upon the motion to dismiss is that the findings constitute a judgment. The action is replevin. The findings of law are to the effect, among other things, that the plaintiff below (defendant in error here) was entitled to the possession of the property in controversy, and to the nominal damage of one cent. The findings are certainly not in the form of a judgment, and do not purport to be a judgment. No formal judgment was ever rendered or entered upon these findings. But it is urged that these findings of law that plaintiff below was entitled to the possession of the property and nominal damages is, in itself, a judgment. We cannot agree to this view. "A judgment is the final determination of the rights of the parties in action." These findings may be said to be a determination of the rights of the parties, but not final, until judgment is rendered and entered...

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17 cases
  • State ex rel. Eaton v. Hirst, 2047
    • United States
    • Wyoming Supreme Court
    • May 25, 1938
    ... ... v. R. R. Co., 68 F. 412; State v ... Commissioners (Wyo.) 58 P.2d 424; State v. Tauer ... (Minn.) 227 N.W. 499; Turner v. Fisher, 222 ... U.S. 204. The right of intervention is clear. Sec. 89-522, R ... S. 1931; 38 C. J. 854; 38 C. J. 856; State v. Land ... Commissioners, ... ...
  • Broadhead v. Broadhead, 86-110
    • United States
    • Wyoming Supreme Court
    • May 12, 1987
    ...be considered as a final order for purposes of appeal as that term was first defined in the Code of Civil Procedure. Gramm v. Fisher, 3 Wyo. 595, 29 P. 377, 378; School Dist. No. 3, Carbon County v. Western Tube Co., 13 Wyo. 304, 80 P. 155, 159 * * "The memorandum opinion, as we view it, di......
  • State v. Scott
    • United States
    • Wyoming Supreme Court
    • June 22, 1926
    ... ... that in the Mosher case it was doubtful if the entry amounted ... to a judgment at all, even had the blank been filled. See ... also Gramm v. Fisher, 3 Wyo. 595, 29 P. 377 4 Wyo ... 1, 31 P. 767. The verdict in the case at bar found merely in ... favor of the plaintiff upon the ... ...
  • Fryer v. Campbell
    • United States
    • Wyoming Supreme Court
    • April 16, 1935
    ... ... 700; ... Gates v. Ry. Co., (Ind.) 56 N.E. 722; Caldwell ... v. Wells, (Idaho) 101 P. 812; Schiller v ... Company, 15 Wyo. 304; Gramm v. Fisher, 3 Wyo ... 595; Wolbol v. Steinhoff, 25 Wyo. 227; Iowa ... State Savings Bank v. Henry, 22 Wyo. 189; N. M. Coal ... Company v ... ...
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