Jones v. Parker

• Decision Date: 09 April 1928
• Docket Number: 1492
• Citation: 38 Wyo. 241,266 P. 128
• Parties: JONES v. PARKER [*]
• Court: Wyoming Supreme Court

266 P. 128

38 Wyo. 241

JONES v. PARKER ^[*]

No. 1492

Supreme Court of Wyoming

April 9, 1928

ERROR to the District Court, Fremont County; E. H. FOURT, Judge.

On petition for rehearing and motion to amend petition in error.

Dismissal vacated; leave to amend granted.

George H. Paul, for plaintiff in error.

The admission in the answer that a portion of the mortgage debt was unpaid and the allegation that the alleged tender had not been kept good, entitled plaintiff to judgment of possession Schlessinger v. Cook, 9 Wyo. 256; Fuller v Pelton, 16 Oh. 458; Moore v. Norman, (Minn.) 19 A. S. R. 247; Warrington v. Pollard, (Ia.) 95 Am Dec. 727; 5740, 5741 C. S. The verdict was contrary to the requirements of Section 6287 C. S.; Wolf v. Meyer, 12 Oh. S. 432; State v. Dunn, 60 Mo. 64; 34 Cyc. 1528; cross-petitions are not permissible in replevin, Bank v. Baine, 20 Nebr. 299; Nichols v. Board, 13 Wyo. 1; Cobbey Replevin, Secs. 25, 27; the foregoing points are reviewable on the record, Ryan v. Snyder, 27 Wyo. 512; Bank of Chadron v. Anderson, 7 Wyo. 442; Underwood v. Davis, 9 Wyo. 178; Seibel v. Bath, 5 Wyo. 409; plaintiff should have an opportunity to amend her petition in error, 5707 C. S.; Riordan v. Horton, 16 Wyo. 363; Milling Co. v. Worthington, 29 Wyo. 56; Land Co. v. Hoffman, 27 Wyo. 271; Mitter v. Coal Co., 27 Wyo. 87; Seibel v. Bath, supra; Commrs. v. Shaffner, 10 Wyo. 189.

M. C. Burk, contra.

The application to amend sets forth new grounds of error which cannot be taken on an application for rehearing; the application fails to show mistake or inadvertence and is not governed by Sec. 5707 C. S.; no diligence was shown, No. Laramie Co. v. Hoffman, 27 Wyo. 271; Co. v. Worthington, 29 Wyo. 56; a motion to reinstate the petition in error is not a matter of right, Riordan v. Horton, 16 Wyo. 363; it is left to the sound discretion of the Court, 4 C. J. 609; under Sec. 5797 an amendment presenting new grounds of error, changes the cause of action, and should be denied, Riordan v. Horton, supra; Railway Co. v. Smoot, 34 N.E. 1002.

George H. Paul, in reply.

The court has been liberal in granting amendments for the purpose of completing appeal records, McGinnis v. Beatty, 26 Wyo. 409; No. Laramie Land Co. v. Hoffman, 27 Wyo. 286-287; the amendment does not change substantially the claim or defense and the application is made in furtherance of justice.

OPINION

Per Curiam.

February 28, 1928, we sustained motions to strike the bill of exceptions and to dismiss the proceeding. 264 P. 97. The proceeding was ordered dismissed because the petition in error alleged no error that could be considered in the absence of a bill of exceptions.

March 13, 1928, the plaintiff in error filed a petition for a rehearing on the motion to dismiss, and a motion for leave to amend the petition in error by omitting therefrom the assignment that the court erred in overruling the motion for a new trial, and inserting in lieu thereof the following assignments of error:

"1. Upon the admissions of the answer and on the face of the record the verdict and judgment should have been for the plaintiff.

"2. Under the provisions of Section 6287, C. S. 1920, the verdict is insufficient to support the judgment.

"3. The allegations of the cross petitions are insufficient in law to constitute any defense to the action or to support the verdict and judgment rendered therein."

These assignments of error are of the kind that may be reviewed without a bill of exceptions. A copy of the proposed amended petition in error is presented with the motion.

We may permit the amendment of a petition in error pursuant to Section 5707, Wyo. C. S. 1920. Milling Co. v. Worthington, 29 Wyo. 56, 210 P. 280, and cases cited.

In Riordan v. Horton, 16 Wyo. 363, 94 P. 448, the plaintiff in error was denied leave to insert a new assignment of error that in effect would have brought into the record matters which were not included within the original assignments of error. In that case, leave to amend was not asked until long after the expiration of the time within which an original petition in error could have been filed. In the case at bar the challenged judgment was entered June 2, 1927, and leave to amend is asked well within the year allowed by statute for commencing a proceeding in error. It is at least not clear that a dismissal of her present proceeding in error would be with prejudice. Boner v. Fall River Bank, 25 Wyo. 260, 168 P. 726. Our attention is called to the fact that plaintiff in error's brief on the merits, filed February 4, is largely devoted to a discussion of the questions that will arise under the assignments of error now sought to be brought into the petition. In the circumstances, we think the order dismissing the...