North Laramie Land Co. v. Hoffman

• Decision Date: 10 March 1921
• Docket Number: 967
• Citation: 195 P. 988,27 Wyo. 271
• Parties: NORTH LARAMIE LAND CO. v. HOFFMAN
• Court: Wyoming Supreme Court

195 P. 988

27 Wyo. 271

NORTH LARAMIE LAND CO. v. HOFFMAN

No. 967

Supreme Court of Wyoming

March 10, 1921

ERROR to District Court of Platte County; HONORABLE WILLIAM C MENTZER, Judge.

Heard on petition for rehearing and motion for leave to amend an unsigned petition in error. For former opinion see 26 Wyo 327; 184 P. 226.

Motion for leave to amend granted.

William A. Riner and Pam & Hurd, for Plaintiff in error.

The subscription of the brief of plaintiff in error is not jurisdictional and the attempted commencement of the proceedings in error was effectual because it was accompanied by service of process within sixty days. (Section 4305 Comp Stats. 1910; Section 4306 Wyo. Comp. Stats. 1910; Section 4422, Wyo. Comp. Stats. 1910; Section 5111 Comp. Stats. 1910; Cin. H. & D. Ry. v. Bailey, 70 N.E. 900; Riordan v. Horton, 16 Wyo. 363; 94 P. 448; Redmond v. U. P R. R. Co., 3 Wyo. 678; 27 P. 880; Board Commrs. v. Shaffner, 10 Wyo. 181; 68 P. 14; Ross v. Willett, 54 Ohio St. Rep. 150; Bantz v. Roder, 14 Ohio Rep. 218.) Civil procedure as to sufficiency and amendment of pleadings govern, (Riordan v. Horton, 16 Wyo. 363; 94 P. 448; Cin. H. & D. Ry. v. Bailey, supra, amendment is one of form and not of substance, Sections 4434 to 4443 Wyo. Comp. Stats. 1910, Cin. H. & D. Ry. Co. v. Bailey supra; Riordan v. Horton, supra; Redmond v. Union Pacific, supra; Board Commrs. v. Shaffner, supra; Ross v. Willett, supra; Bantz v. Roder, supra. This court retains jurisdiction pending rehearing Rule 23 of this Court. This court has held that by analogy the statutes pertaining to civil procedure apply to proceedings in error, Riordan v. Horton, supra. In adopting the civil code of Ohio our legislature adopted the policy of Ohio with respect to the disposition of cases upon their merits and copied the Ohio statutes relating to mistakes and amendments, which appear in our compilation of 1910, as Sections 4434 to 4443 inclusive. The important sections for this consideration conclude with Section 4439. The policy of this legislature is that error or defects not affecting substantial rights are to be disregarded. An unsigned petition in error may be amended, 4437 Comp. Stats. 1910, and an affidavit for appeal from the Justice Court, Redmond v. Union Pacific R. R. Co., supra. This court is one of general jurisdiction, Hobart v. Hammel, 18 N.J.L. 73. An unsigned petition in error is not a nullity but may be amended. (Manspeaker v. Bank, 4 Kan.App. 768, 46 P. 1012; Sims v. Dame, 15 N.E. 217; 113 Ind. 127; Bruner v. Norchner, 150 P. 159; Canadian Bank v. Leale, 111 P. 759; West Mt. Co. v. Danley, 111 P. 647; Lillman v. Mills, 15 Wyo. 149; 87 P. 985; Coleman v. Bercher, 94 Ark. 345). Judgment of Supreme Court is not final until period for rehearing has expired, (Cline v. Wrightson, 7 Ky. Law Rep. 215; Bedford v. Saunders, 41 La. 285; Williams v. Williams, 71 N.C. 216; Kronkhite v. Bothwell, 30 P. 492; 3 Wyo. 736). Notwithstanding amendment may have effect of recalling judgment and resulting in a different judgment, amendment is permissable, (Williams v. Williams, supra; Hatch v. Bank, 78 N.Y. 487). Mistake which may be cured by amendment includes counsel's misapprehension of and mistake in law as well as in fact. (Gould v. Stafford, 101 Cal. 32; Kirstein v. Madder, 38 Cal. 158.)

Kinkead and Henderson, for Defendant in Error.

Pam & Hurd, not having been admitted to practice in Wyoming could not appear herein, (6 Corp. Jur. 569, Section 12; Robertson v. Shorow, 10 Wyo. 368, 372). The petition in error, praecipe, and request for record signed by them were insufficient to invoke the jurisdiction of this court, (6 Corp. Jur. 570, Section 13; Robb v. Smith, 3 S. C. A. M. 46; Newberger v. Camel, 58 How. Pr. 313; Chaplan v. Berman, 75 N.Y. 102; Ellis v. Bingham Co., 60 P. 79; Leaver v. Kilmer, (N. J.) 54 A. 817; Duyster v. Crawford, 54 A. 823.) The court properly struck the petition from the files.

(Publicity Sect. v. Raye, 98 A. 300; Holzman v. Purdy, 162 N.Y.S. 65; Leaver v. Kilmer, supra; Duyster v. Crawford, supra). The jurisdiction of this court is invoked by filing a petition in error and praecipe for summons. (Section 4422 Comp. Stats; Lobell v. Oil Co., 19 Wyo. 170). The application to amend comes too late, (Gibbons v. Scott, 19 Cal. 284; Warner v. Godfrey, 186 U.S. 365-377; Behannon v. Clark, (Ky.) 78 S.W. 479). Plaintiff in error was guilty of culpable negligence, (4 Corp. Jur. 1195; Wade v. Nelson, Mo. 95 S.W. 950; Dahlman v. Milwaukee, 111 N.W. 675; W. M. & F. Co. v. Mann, 76 N.W. 777; Demper v. Carroll, 21 Wyo. 477; Callahan v. Rouck, 14 Wyo. 201, 207.) Plaintiff in error submitted motion to strike upon theory that petition was sufficient to invoke jurisdiction of this court, cannot now have a reversal of the court's decision to permit him to amend, (Davis v. Co. 72 P. 881; Boat Co. v. Howey, 85 N.Y.S. 95.) The amendment tendered would change the issue, Sec. 4437 Comp. Stats. The decision heretofore rendered, not being erroneous, will not be set aside for purpose of allowing an amendment, (Sutter v. San Francisco, 36 Cal. 112; Davis v. Assn. 92 P. 881; 15 Ann. Cas. 333; Gibbons v. Scott, 15 Cal. 285.) Amendments are not permitted after judgment, (Harrington v. Christie, 47 Ia. 319; Sicklin v. Kendall, 72 Ia. 490; 34 N.W. 283; Carlisle v. Show Co., 163 N.W. 380, 385.) Surprise that judgment was adverse no ground for setting it aside. (Ins. Office v. Heiderer, 99 P. 39 (Colo.) The relation of attorney and client did not exist between Mr. Riner and plaintiff in error upon the filing of petition, and he could not, therefore, sign the petition and praecipe for summons, (Sec. 6, Corp. Jur. 630, Herslib v. Moss, 28 Ind. 354).

POTTER, Chief Justice. BLYDENBURGH, Justice, concurs. The death of the late Chief Justice Beard, who sat in the cause, occurred before the preparation of the opinion.

OPINION

POTTER, Chief Justice.

At a former hearing of this case upon the motion of defendants in error to dismiss the cause and "dismiss and expunge" the petition in error, the motion to dismiss the proceedings in error was sustained and an order of dismissal entered. (26 Wyo. 327, 184 P. 226.) At the same term that said motion was disposed of by that order, and within the time prescribed by the rules for an application for rehearing, a petition for re-hearing was filed by the plaintiff in error, and concurrently therewith a motion for leave to amend the petition in error by causing it to be signed by local counsel of the plaintiff in error so as to cure the objection upon which the motion to dismiss was based and granted. Thereafter defendants in error filed a motion to strike said motion to amend from the files. An oral argument was requested by the court upon the petition for re-hearing, as authorized by our rules, and it was submitted upon such argument and briefs, together with the two motions last above mentioned.

As stated in the former opinion, the petition in error was subscribed only by non-resident attorneys for plaintiff in error, who were not members of the bar of this state and had not requested or been granted permission to appear as attorneys in this court, either generally or for the purposes of this case; and the ground of the motion to dismiss was that the petition in error, not having been subscribed by the plaintiff in error or by a member of the bar of this court as its attorney, was insufficient to constitute the commencement of proceedings in error, or to give this court jurisdiction of the subject matter of the action.

Applying the statutory provision that "every pleading and motion must be subscribed by the party or his attorney" it was held that the attorney of a party to an action, who is authorized to subscribe pleadings "is an attorney who has the right to practice in the court wherein the case is pending"; and that the act of the non-resident attorneys in signing the petition in error could not be recognized by the court. From that the court concluded that the petition in error, not being properly subscribed, is not such a petition as will invoke the jurisdiction of the court, but is a nullity, and should be stricken from the files, and that, as proceedings in error can be commenced only by the filing of a petition in error, and an attorney of another state can be admitted only in a pending action, and not for the purpose of bringing an action, the proceedings, until such petition is filed, are not pending, "so as to permit the admission of a non-resident attorney for the purposes of the case." And, having so concluded, it was ordered that the proceedings be dismissed.

It is alleged in the petition for re-hearing, and contended in support thereof, that this court erred in deciding that the petition in error was not sufficient to constitute the commencement of proceedings in error, or to give the court jurisdiction of the subject matter of the action. The correctness of the decision that a non-resident attorney who has not been admitted to practice in this state either generally or specially in the particular cause cannot properly sign alone a petition in error, and that a petition so signed is defective, is not directly or specifically challenged, nor would we feel inclined to recede from the decision on that point. It has long been an unwritten rule of this court thought to be controllable through the clerk's office, that a non-resident attorney would not be recognized as having the right to commence proceedings in error, without an order upon application permitting it, or unless associated for that purpose with a resident member of the bar of the court, which latter condition it was supposed would be understood to require an association of names upon the papers filed in the case. The contention is that the defect aforesaid...