Nelson v. Sunset Oil Co.

• Decision Date: 22 March 1927
• Docket Number: 1347,1366
• Citation: 36 Wyo. 245,254 P. 127
• Parties: NELSON v. SUNSET OIL CO. [*] SUNSET OIL CO. v. NELSON
• Court: Wyoming Supreme Court

254 P. 127

36 Wyo. 245

NELSON v. SUNSET OIL CO. ^[*]

SUNSET OIL CO. v. NELSON

Nos. 1347, 1366

Supreme Court of Wyoming

March 22, 1927

ERROR to District Court, Niobrara County; C. O. BROWN, Judge.

Action by Emma M. Nelson against the Sunset Oil Company. From a judgment for plaintiff, defendant appeals, and on dismissal of the appeal, defendant brings error.

Affirmed.

Edwin L. Brown, for plaintiff in error.

The petition is insufficient in failing to allege delivery, which is as essential as the signing thereof; the petition alleges as a mere conclusion of the pleadings, a sum due and owing plaintiff upon a promissory note, with interest from the given date, with an alleged copy of the note; the point was raised properly by demurrer to the petition, which was overruled and exceptions reserved; to cite authorities would be like making proof that the sun rises in the east.

M. H Neil, for defendant in error.

The petition was sufficient under Section 5676 C. S., relating to abbreviated pleadings on instruments for the payment of money; Bates Pl. & Pr. 1908 Ed., Vol. 2, P. 1086; Brown v. Cow Creek Sheep Co., (Wyo.) 126 P. 886; Frontier Supply Co. v. Loveland, 88 P. 651. The note contained an unconditional promise to pay a certain sum of money.

OPINION

Per Curiam.

This is an action brought by Emma M. Nelson, plaintiff, against the Sunset Oil Company, a corporation, defendant, on a promissory note dated September 21, 1920, for the principal sum of $ 1,000, made by said corporation to Andrew C. Nelson and Emma M. Nelson--Andrew C. Nelson having assigned his interest to Emma M. Nelson, the plaintiff. Judgment was entered for the plaintiff for the amount claimed. From that judgment said defendant took a direct appeal. The record on appeal was filed in this court on October 13, 1925. No brief on behalf of appellant was filed within the sixty days allowed by rule 15, the time having expired on December 12, 1925, appellant however, filing a brief on December 16, 1925. Respondent, on December 21, 1925, filed a motion under rule 21 of the court to dismiss the appeal, because appellant had failed to file his brief in time. That motion must be granted and an order dismissing the appeal will be entered. The W. Sheep Co. v. Pine Dome Oil Co., 29 Wyo. 59, 210 P. 389; Atkins v. Hunsaker, 29 Wyo. 411, 213 P. 757.

After the filing of the motion to dismiss, aforesaid, and on December 23, 1925, the Sunset Oil Company, defendant in the case below, filed in this court its petition in error from the judgment above mentioned, assigning as error, first "that the petition in said action does not state facts sufficient to constitute a cause of action;" second, "that said judgment rendered in said cause is not based upon a petition which contains a statement of sufficient facts to constitute a cause of action." In that connection the only claim made by counsel for plaintiff in error is that the petition failed to allege that the note sued on was executed and delivered, and that such failure makes the petition fatally defective. The petition, among other things, alleges that "there is due and owing plaintiff from defendant the sum of $ 1518.75, which she claims with interest at 12 per cent from the 6th day of August, 1924, on a promissory note, of which the following is a copy, with all credits and endorsements to-wit." Then the note is set out in haec verba, the endorsement showing a payment of $ 100 and the assignment from Andrew C. Nelson to Emma M. Nelson, and the petition then proceeds to state "that no part of said note or interest has been paid except the said sum of $ 100 endorsed thereon,...