Menardi v. Omalley

• Decision Date: 31 January 1890
• Citation: 23 P. 68,3 Wyo. 327
• Parties: MENARDI v. OMALLEY
• Court: Wyoming Supreme Court

23 P. 68

3 Wyo. 327

MENARDI v. OMALLEY

Supreme Court of Wyoming

January 31, 1890

Error to district court, Johnson county.

The plaintiff sued the defendant in the court below, and the defendant demurred to the petition, alleging that it did not state facts sufficient to constitute a cause of action. The plaintiff, by leave of court, filed an amended petition, and by consent of parties the demurrer already filed was treated as a demurrer to the amended petition. The court sustained the demurrer, and the plaintiff excepted. No further order or entry appears in the record, except the recital that subsequently, on December 10, 1888, the case, on motion of plaintiff, was stricken from the docket of the court. Rev. St. Wyo. § 3128, provides 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 on the record. Petition dismissed.

Petition dismissed.

Charles H. Burritt and Henry S. Elliott, for plaintiff in error.

J. J. Orr, for defendant in error.

CORN, J. VAN DEVANTER, C. J., and SAUFLEY, J., concurred.

OPINION

CORN, J.

, (after stating the facts substantially as above.) The record presents nothing upon which this court can act. Judgment was not rendered for the defendant upon the sustaining of the demurrer, and no final order, within the meaning of section 3128 of the Code of Civil Procedure, appears to have been made. The order sustaining the demurrer did not, in effect, determine the action, and prevent a judgment. The order striking the case from the docket upon the plaintiff's motion either disposes of it finally upon plaintiff's own motion, of which he cannot complain, or leaves it pending in that court, subject to be reinstated upon the docket. If it is still pending, so far as anything appears to the contrary, he may yet amend his petition, and recover judgment. In either case, the plaintiff in error has no standing in this court. The petition in error will be dismissed.

VAN DEVANTER, C. J., and SAUFLEY, J., concurred.