Kent v. Upton

Decision Date11 April 1883
Citation3 Wyo. 43,2 P. 234
PartiesKENT v. UPTON
CourtWyoming Supreme Court

On remand from the supreme court of the United States.

Action by Clark W. Upton, assignee in bankruptcy of the Great Western Insurance Company, against Thomas A. Kent, to recover the balance alleged to be due on a subscription to the stock of said company. Judgment for defendant. Plaintiff appeals. Reversed. On appeal to the United States supreme court judgment of reversal reversed, and case remanded to the supreme court. Judgment affirmed.

Judgment affirmed.

W. W Corlett, for plaintiff in error.

C. N Potter, for defendant in error.

SENER, C. J. PARKS, J., concurs. BLAIR, J., dissents.

OPINION

SENER, C. J.

This was a civil action brought in the district court for the first judicial district in and for Laramie county, by Clark W. Upton, assignee in bankruptcy of the Great Western Insurance Company, against Thomas A. Kent, as a stockholder in said company, to recover the balance alleged to be due on a subscription to the stock of the said company and unpaid. The petition alleged that said Kent was the owner of 10 shares of the stock originally subscribed for by himself, and of 10 other shares purchased by him from Joslin & Park, and for which a new certificate was given, upon which 20 shares 40 per cent. had been paid prior to bankruptcy, leaving a balance of 60 per cent. on each share unpaid, and failing to pay the said balance in accordance with the order, this suit was commenced in said court. Kent filed an answer admitting the corporate existence of said company, and the fact of his subscription for 10 shares of its capital stock, and the subsequent purchase by him of the 10 shares from Joslin & Park, and denied each and every other allegation of the petition; and for a second defense alleged that the subscription was made by him on account of false and fraudulent representations of the agent of the company; and, thirdly, alleged a set-off. The second and third defenses were originally demurred to by the plaintiff, and the demurrer overruled, and the court admitted evidence under said defenses; but in its charge to the jury stated that said admission was error, and instructed the jury to disregard the same. The case was tried by a jury, and a verdict rendered against Kent for $ 1,200. Upon the case coming to this court at the March term, 1879, (2 Wyo. 53,) the judgment of the court below was reversed upon the ground that the action was barred by the statute of limitations, which claim was first made in this court, and the case was thereafter heard in the United States supreme court upon that question only, (vide 105 U.S. 640, 646,) this court being reversed upon the question of statute of limitations; and the case was then remanded to this court to take such further proceedings as may be in conformity with law and not inconsistent with the opinion of the supreme court of the United States.

The petition in error puts in issue in this court several questions respecting the admission of testimony and the instructions of the court to the jury. But before we can or ought to consider these questions, we must first consider and dispose of the one last raised by the defendant in error in his brief, and which is thus stated by him: "The question of the time when the motion for a new trial was filed is submitted for consideration. The time was extended, for what reason the record fails to inform us, and some considerable time from verdict elapsed before its filing." In brief, it is submitted to us whether the plaintiff in error has so perfected his case in the court below as to bring into this court any question which this court can or ought to determine. The statutes of Wyoming governing the question as to the time and manner of presenting applications upon motions for new trial are very simple and clear, are found in chapter 13, §§ 308, 309, Comp. Laws Wyo. p. 72, and read as follows:

"Sec. 308. The application for a new trial must be made at the term the verdict, report, or decision is rendered, and except for the cause of newly-discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered, and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.

"Sec. 309. The application must be by motion, upon written grounds, filed at the time of making the motion. The causes enumerated in subdivisions two, three, and seven of section three hundred and six, must be sustained by affidavits showing their truth, and may be controverted by affidavits."

These statutes are mandatory in their character, as their reading will show. The highest courts of several states have construed them in this light, as will be seen by reference to Harris v. Ray, 54 Ky. 628, 15 B. Mon. 628; Odell v. Sargent, 3 Kan. 80; Killip v. Mill Co., 2 Nev. 34; Richmond's Adm'x v. Wardlaw, 36 Mo. 313; Ellsassar v. Hunter, 26 Cal. 279.

In this case we cannot do better than to adopt the language of Judge WAGNER in Richmond's Adm'x v. Wardlaw, supra, in delivering the opinion of the court, wherein he says: "The sum of the whole matter seems to be this: A party sleeps on his rights until the time allowed him by law to make a motion for a new trial expires; he can no longer claim to make his motion as a matter of right." Continuing, the learned judge says: "If the court refuses to grant the party a new trial, no error will lie, because no law authorized him to make the motion after the four days expired, and this is a proper punishment for neglecting to assert his rights in due time."

The record in this case shows that the verdict of the jury was rendered on the 14th of December, 1876. Vide page 116 of the printed record before us. The motion for a new trial was not filed until the 16th of February, 1877, --more than 60 days after the verdict was rendered. And there is nothing in the motion, or accompanying the motion, to show that the party filing said motion had been theretofore "unavoidably prevented." But it will be urged that the court extended the time for filing said motion for a new trial until the end of the then present term of the district court. The extract of the record giving this permission, or rather undertaking to do it absolutely in the face of the mandatory words of the statute, is as...

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8 cases
  • McNab v. State
    • United States
    • Wyoming Supreme Court
    • January 14, 1931
    ...7582, W. C. S. 1920; Sec. 7583, W. C. S. 1920; Rule 13 of the Rules of the Supreme Court of Wyoming, as amended August 14, 1923; Kent v. Upton, 3 Wyo. 43; McLaughlin Upton, 3 Wyo. 48; Seibel v. Bath, 5 Wyo. 409; Bank of Chadron v. Anderson, 7 Wyo. 441; Casteel v. State, 9 Wyo. 267; Boswell,......
  • Hanson v. C. B. & Q. R. R. Company
    • United States
    • Wyoming Supreme Court
    • April 2, 1923
    ... ... Coal Co., 25 Wyo. 406.) The ... rule is similar to the rule limiting the time for filing a ... motion for new trial, which is mandatory. ( Kent v ... Upton, 3 Wyo. 43; McLaughlin v. Upton, 3 Wyo ... 48; Boswell v. Bliler, 9 Wyo. 277; Casteel v ... State, 9 Wyo. 267; Todd v ... ...
  • Kowlak v. Tensleep Merc. Co.
    • United States
    • Wyoming Supreme Court
    • October 12, 1929
    ...plaintiff's motion for a new trial, said motion not having been filed at the term of court, at which the verdict was rendered. Kent v. Upton, 3 Wyo. 43; McLaughlin v. Upton, 3 Wyo. 48; McKinney State, 3 Wyo. 719; Casteel v. State, 9 Wyo. 267; Boswell, Admr. v. Bliler, 9 Wyo. 277; Blonde v. ......
  • Blonde v. Merriam
    • United States
    • Wyoming Supreme Court
    • July 19, 1913
    ...for extending the time for filing the pleadings is not applicable. (McDermitt v. Halleck, 65 Kan. 403, 69 P. 335.) The cases of Kent v. Upton, 3 Wyo. 43, McLaughlin v. Upton, 3 Wyo. 48, referred to with approval in Todd v. Peterson, 13 Wyo. 513, are decisive of this case upon the question p......
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