Hogan v. Peterson

Citation59 P. 162,8 Wyo. 549
PartiesHOGAN, ET AL., v. PETERSON
Decision Date04 December 1899
CourtUnited States State Supreme Court of Wyoming

ERROR to the District Court, Fremont County, HON. JESSE KNIGHT Judge.

Replevin. The material facts are stated in the opinion.

Affirmed.

E. H Fourt and M. O. Brown, for plaintiffs in error.

The calling of a jury to try the cause, after a waiver thereof by the parties, was error. (R. S., Sec. 2567; Syndicate Imp Co. v. Bradley, 6 Wyo. 171; Suth. Stat. Const., 587; 60 Pa. 464.) In case of a conflict between the journal entry as to the matter of calling a jury, and the bill of exceptions, the latter must control. (Roy v. U. M. Co., 3 Wyo. 417.)

The law presumes that when a settlement is made, such as that made between Hogan and Chandler and Mrs. Peterson at the time of giving the note and mortgage, all the transactions between the parties up to that time are taken into consideration. (Roach v. Gilmer, 4 P. 221.) By taking a mortgage, the mortgagee tacitly admits that the title to the property covered thereby has been considered and settled to be in the mortgagors; and the mortgagee can not be permitted to repudiate the settlement, and at the same time avail herself of the benefits of the security. (Wells v. Neff, 12 P. 84.)

It became the duty of Mrs. Peterson to give Mr. Fourt notice of her claim to the property included in the mortgage, at the time he paid the same, and said that he was buying the property. (2 Pom. Eq., 597; Wilson v. McCullough, 62 Am. Dec., 347; Raymond v. Flavel, 40 P. 158.)

The mortgagee is estopped from claiming title to any of the property covered by the mortgage. (Torrey v. Bank, 9 Paige, 649; Cruger v. Daniel, 1 McMullan Ch., 157; Ward v. McIntosh, 12 O. St., 231; 7 Wheat., 316; Bigelow Estoppel, 268, 291; 2 Smith's Leading cases, 818; Swain v. Seamans, 9 Wall., 254; Dickerson v. Colgrove, 100 U.S. 580; Titus v. Morse, 40 Me. 348.)

James S. Vidal and Clark & Breckons, for defendant in error.

The time of the presentation of the bill of exceptions must appear from the record proper. A statement thereof in the bill is insufficient. (2 Colo. 20; 127 Mass. 161; 114 id., 362; 24 Mo. App., 543; 82 id., 195; 95 Ind. 404.)

The failure to set forth the alleged error in calling a jury, in the motion for new trial, is a waiver of it. (54 Neb. 630; 51 P. 481; 45 id., 139, Rule 13.) The ordering of a jury to try a cause, properly triable by a jury, even though the parties may have waived a jury, is not error. (27 Cal. 250; 31 P. 367; 15 Mo. app., 385.)

If the record fails to show that it contains all the instructions given to the jury, it will be presumed that proper instructions were given. (87 Ala. 514; 13 Colo. 1; 57 Ind. 188; 117 id., 377; 69 Iowa 41; 154 Mass. 432; 30 Mich. 362; 25 O. St., 369; 33 id., 444; 12 Wis. 659.)

There is no foundation in the evidence for invoking the principle of estoppel against defendant in error. Mr. Fourt read the contract, and must have known that the only cattle to be delivered to his vendors were their interest in the increase of 1895 and 1896.

POTTER, CHIEF JUSTICE. CORN, J., concurs. KNIGHT, J., did not sit.

OPINION

POTTER, CHIEF JUSTICE.

The first question for our determination relates to the bill of exceptions. Counsel for defendant in error contend that the bill is not entitled to consideration for the reason that it is not shown by the record proper, that it was reduced to writing and presented for allowance within the time allowed by the order of the court.

By an order regularly entered in the journal at the term when the exceptions were taken, and at the time of overruling the motion for new trial, the plaintiffs in error were given time until and including the first day of the next term of the court within which to present their bill of exceptions. It is recited in the bill as follows: "Whereupon the court ordered that defendants have time until and including the first day of the next succeeding term of said court, in said Fremont County, to reduce their exceptions to writing, and in which to present their bill of exceptions to the court or to the judge thereof in vacation for allowance. And thereupon, the defendants within the said time allowed them, now tender this their bill of exceptions, which is allowed, signed, sealed, and ordered to be filed and made a part of the record in this said cause."

This court has held that the granting of time beyond the term to complete and tender a bill must be evidenced by the entry of an order during the term; and that a recital in the bill that time was so given is insufficient. Smith Drug Co. v. Casper Drug Co., 5 Wyo. 510, 40 P. 979; Schlessinger v. Cook (recently decided). The reasons which induced that conclusion do not prevail as to the time of tendering the bill.

Time having been granted beyond the term and until and including the first day of the next succeeding term to present the bill, the court has, by authority of the statute, retained control of the record of the cause, and if the bill is tendered within the time allowed, is competent upon its allowance to make an order that the bill be constituted part of the record as much so as if the bill had been reduced to writing and presented for allowance during the term at which the exceptions were taken. In McBride v. Union Pacific Ry. Co., 3 Wyo. 183, 18 P. 635, it was held that no journal entry was required to show the allowance and signing of a bill of exceptions; and it was said: "The allowance, signing, and perhaps filing are what constitute it a part of the record, and no journal entry is necessary for that purpose." The statute provides that when the bill has been allowed and signed, it shall be filed with the pleadings as a part of the record, but not spread at large upon the journal. The bill being a part of the record, as a result of the allowance, signing and filing thereof, there occurs to us no valid reason why the time of its presentation, and the fact that such presentation was within the time allowed, may not be set forth in the bill itself over the signature of the judge. If no journal entry is essential to preserve a record of the allowance, but the bill itself, disclosing such allowance and signing, operates as a sufficient record thereof, it would seem reasonably to follow that, as to the matter of presentation, it is only required that it appear upon the face of the bill that the presentation was within the time allowed. It was said in Smith Drug Co. v. Casper Drug Co., supra, "but the bill must show on its face that it was presented within the time allowed." In that case it was held that the absence from the order of allowance appearing in the bill of a statement that it was tendered within the time allowed was fatal to the bill.

While it is probably better practice for the bill to show the date when it was tendered, we think a statement that it was presented within the time allowed is sufficient. In this case the time allowed by previous order is recited in the bill, and immediately following that recital it is stated that the bill was presented within the said time allowed.

The certificate of the clerk appended to the transcript states that it contains a true and complete copy of the bill of exceptions on file and of record in his office. This sufficiently authenticates the bill, and shows also the fact that it had been filed.

Counsel for plaintiff in error, in their brief, contend that there was error in the proceedings in the court below in this; that after both parties had waived a jury, the court ordered and impaneled one to try the cause. The bill of exceptions recites that the jury was called upon the demand therefor by the plaintiff, after a previous waiver, and without the advancement of the required jury fee; while the journal entry does not show that such a demand was made. The matter was orally argued by counsel, and it was earnestly insisted that the statute is mandatory in its provision that after a waiver upon the formal call of the docket, and a failure to pay the fee exacted from a party demanding a jury, "a jury shall not thereafter be allowed or called in such case during that term."

It will be unnecessary to refer to all the statutory provisions covering this question, or to determine whether error was committed in that regard, for the reason that the question is not properly before the court. The conduct of the court in calling a jury is not assigned as a ground of error in the petition in error; and although the denial of the motion for new trial is assigned as error, that motion did not specify that matter as one of the grounds for a new trial. The question was not brought to the attention of the court at all, after verdict, so far as the record discloses. Our Rule 11 requires that the petition in error shall distinctly set forth each of the errors complained of; and Rule 13 provides that the ruling of the court below upon each matter presented by a motion for new trial shall be sufficiently questioned by an assignment that the court erred in overruling such motion. The assignment of the matter as error, for the first time in counsel's brief, is not sufficient, and does not comply with the rule.

Again, we are of the opinion that it should have been embraced in the motion for a new trial, to entitle it to consideration here on error. It was held in Syndicate Improvement Co. v. Bradley, 43 P. 79 (6 Wyo. 171), that an alleged error in denying a demand for a jury trial would not be considered where the question had not been raised in the court below on a motion for a new trial.

In the motion for new trial certain alleged instructions to the jury are complained of; but it is not made clear by the bill that they were given, nor is it apparent that all the instructions given are embraced in the bill...

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21 cases
  • Field v. Leiter
    • United States
    • Wyoming Supreme Court
    • 10 d1 Junho d1 1907
    ... ... (20 Ency. L ... (2d Ed.), 239; State v. Sweetser, 53 Mo. 440; ... Fowler v. Perkins, 77 Ill. 271; Hogan v. Devlin, ... 2 Daly, 184; Webb v. Robbins, 77 Ala. 180; ... Terr. v. Nelson, 2 Wyo. 346; Black's L. Dict., ... 762; Mason v. Fearson, 9 ... was made and published. The complaint comes too late ... ( Wynn v. Ry. Co., 91 Ga. 344; Watson v ... Roode, 43 Neb. 348; Peterson v. Skjelver, 43 ... Neb. 348; Berry v. DeWitt, 27 F. 723; Bradshaw ... v. Degenhart, 39 P. 90; Lee v. McLeod, 15 Nev ... 158; Patten v ... ...
  • Jones v. Chicago, Burlington & Q. R. Co.
    • United States
    • Wyoming Supreme Court
    • 12 d1 Abril d1 1915
    ...trial, must be presented in a motion for a new trial and preserved in a bill of exceptions, in order to have the error reviewed. (Hogan v. Peterson, 8 Wyo. 549; Syndicate Improvement Company v. Bradley, 6 Wyo. 178.) A jury fee must be deposited. (McGeagh v. Wordberg, 55 N.W. 117 (Minn.) Cad......
  • Campbell v. Weller
    • United States
    • Wyoming Supreme Court
    • 7 d1 Maio d1 1917
    ... ... 289.) ... The question of notice is not raised by the petition in error ... and cannot be considered on appeal. ( Hogan, et al., v ... Peterson, 8 Wyo. 549.) Justice Story had authority to ... transfer the papers to the District Court on appeal ... ( Valadon v ... ...
  • Fryer v. Campbell
    • United States
    • Wyoming Supreme Court
    • 16 d2 Abril d2 1935
    ...13 provides that each matter presented by a motion for a new trial shall be sufficiently questioned by an assignment of error. Hogan v. Peterson, 8 Wyo. 549; Grimm Town of Washburn, (Wisc.) 75 N.W. 984; Goldberg v. Loan & Title Co., (S. D.) 123 N.W. 266. Errors assigned, but not argued, are......
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