Metcalf v. Hart
| Decision Date | 19 April 1892 |
| Citation | 27 P. 900,3 Wyo. 513 |
| Parties | METCALF v. HART |
| Court | Wyoming Supreme Court |
Original Opinion of October 26, 1891, Reported at: 3 Wyo. 513.
Rehearing denied.
OPINION ON REHEARING.
(April 19, 1892.)
Appellee bases her argument in favor of her motion for a rehearing partly upon the ground that the decision of this court gives to appellant relief for which he did not ask. Such is not the fact. All other matters presented in argument on this motion have been sufficiently considered in the opinion delivered in the case. Rehearing denied.
ON MOTION TO DISMISS APPEAL.
(May 23, 1892.)
After the argument and decision of this cause, and the denial of a motion for rehearing, a motion to dismiss the appeal is made on the ground that the decree appealed from is not a final decree, and the appeal is therefore premature. The cases cited in support of this motion do not show that such a motion is permissible at this stage of the proceedings. Many well-considered cases hold to the contrary. The decree appealed from was for the surrender of the realty in controversy, and all improvements thereon, to appellee, and for the rents, issues, and profits from September 5, 1885, and directing a reference to the master commissioner to take and report testimony as to the value of each separate piece of property adjudged to be the property of defendant, appellee here, from that time until the making of such report. It is claimed that the decree is not final until this amount is ascertained, and put in the form of a decree. This court finds that the decree as made is erroneous, and must be reversed. The effect of the motion, if sustained, is to send the cause back to the trial court, to enable it to ascertain the amount of rents, issues, and profits, to which no one is entitled. The court will not do a vain thing. Motion denied.
Adhering to the views expressed by me in this case, I think that a rehearing should have been granted, on the ground that the judgment of this court is too broad, and that the relief given to the appellant is not warranted by the evidence. He should not be allowed for the present value of his...
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