Mau v. Stoner

• Decision Date: 30 December 1905
• Parties: MAU v. STONER ET AL
• Court: Wyoming Supreme Court

83 P. 218

14 Wyo. 183

MAU v. STONER ET AL

Supreme Court of Wyoming

December 30, 1905

[Copyrighted Material Omitted]

14 Wyo. 183 at 198.

Original Opinion of November 8, 1905, Reported at: 14 Wyo. 183.

Rehearing denied.

J. H Ryckman, for plaintiff in error, on petition for rehearing.

The Legislature has provided for the review of a judgment or final order made by a District Court, and defines judgments and final orders. (Rev. Stat., Secs. 4249, 3751.) The declaration that the decision shall be final merely settles it as a final and not an interlocutory order; it was not intended to render the decision a conclusive determination of the rights of the parties, and to deny the right of appeal.

VAN ORSDEL, JUSTICE. POTTER, C. J., concurs. BEARD, J., did not sit.

OPINION

ON PETITION FOR REHEARING.

VAN ORSDEL, JUSTICE.

This cause was decided at the present term of this court. Within time counsel for plaintiff in error filed a petition for rehearing. It is contended by counsel for plaintiff in error that the clause, "the decision so rendered shall be final," as used in Chapter 93, Session Laws of 1903 merely defines the judgment of the District Court as a final order, and distinguishes it from an interlocutory order, as the same are defined and distinguished by the statutes of the state, allowing appeals from final orders only. It is therefore, claimed that the order or judgment complained of, being so expressly defined as a final order of the District Court, comes within the scope of Section 4249, Revised Statutes, which provides generally that appeal will lie to the Supreme Court from judgments rendered or final orders made by the District Court. There are decisions of courts of high respectability which hold that the words "final and conclusive," when used in reference to the decisions of inferior courts, are employed in the sense of declaring the judgment final and not interlocutory. The great weight of authority, however, seems to regard the use of such terms as indicative of a final and conclusive determination of the litigation and the further right of appeal, rather than as defining the character of the judgment. (See opinion of Crockett, judge, in appeal of S. O. Houghton, 42 Cal. 35.) In the case of McAllister v. The Albion Plank Road Company, 10 N.Y. 353, a case closely analogous to the one here under consideration, where it was provided by the statute of 1847 that the report of the road reviewers when confirmed by the Supreme Court should be final, and by the later amendatory act of 1851, that it should be final and conclusive, the Court of Appeals, in construing the effect of these expressions as used in the respective statutes, said: "It is not perceived how any effect can be given to these expressions, unless it be to take away and prevent any further appeal or review. They certainly add nothing to the force or validity of the decision, which would be just as binding and operative in all respects, without as with them; and it will hardly do, after they have been inserted in the original act, and repeated in the amendment, to treat them as redundant and meaning nothing." In the case here under consideration, like the one just cited, the Legislature has emphasized its intention, both in the original act and in the amendment. In Section 910, Revised Statutes, it is declared that the decision of the court, judge or court commissioner shall be final, without the use of any qualifying clause whatever, and again in Chapter 93, supra, which is amendatory of Section 910, it is declared that the decision shall be final, unless an appeal is taken from the judge or court commissioner to the District Court. We are of the opinion that the qualifying clause, providing for appeal from the court commissioner or judge in chambers, clearly signifies that the word "final" is used, not in the sense of distinguishing the judgment as a final and not an interlocutory one, but rather as putting an end to the litigation and...