Northwestern Terra Cotta Co. v. Smith-Turner Hotel Co., 1849

• Citation: 47 Wyo. 190,33 P.2d 915
• Decision Date: 19 June 1934
• Docket Number: 1849
• Parties: THE NORTHWESTERN TERRA COTTA CO. v. SMITH-TURNER HOTEL COMPANY
• Court: United States State Supreme Court of Wyoming

33 P.2d 915

47 Wyo. 190

THE NORTHWESTERN TERRA COTTA CO. v. SMITH-TURNER HOTEL COMPANY

No. 1849

Supreme Court of Wyoming

June 19, 1934

APPEAL from the District Court of Natrona County, C. D. MURANE Judge.

Action by the Northwestern Terra Cotta Company, a corporation against Smith-Turner Hotel Company, a co-partnership. A default judgment was rendered for plaintiff, who thereafter moved for leave to correct the name by which defendant was sued, and in which judgment was entered to show its true name of Smith & Turner. From an order denying said motion plaintiff appeals. Dismissed for defective record, and for that reason abstracts of briefs on merits are omitted.

Appeal Dismissed.

OPINION

Per CURIAM.

In this case, the Northwestern Terra Cotta Company, a corporation brought an action, on December 13, 1929, against the defendant, Smith-Turner Hotel Company, a co-partnership, on account of goods and merchandise furnished the defendant in 1924. C. A. Smith was served with summons in the case. There was no appearance on behalf of the defendant and judgment was entered by default on September 26, 1931. Subsequently, a motion appears to have been made, supported by the affidavit of Fred W. Layman, attorney for the plaintiff herein, alleging that the name by which the defendant was sued and in which judgment was entered herein was incorrect, and asked that the name be corrected to the true name of Smith and Turner. On August 18, 1933, the motion was overruled and the relief asked was denied. From that order the plaintiff has appealed to this court.

There is no certificate, as required by Sec. 89-4906, Rev. St 1931, attached to the bundle of papers before us, called by counsel the record on appeal, which shows, either directly or indirectly, that it is true and correct, and hence there is nothing before us to review. That is so thoroughly established by the decisions of this court that we need but refer to Simpson v. Building and Loan Association, 45 Wyo. 425, 19 P.2d 958; In re Basin State Bank, 43 Wyo. 1, 296 P. 1074; W. H. Holliday v. Bundy, et al., 42 Wyo. 61, 289 P. 1094; Electrolytic Cooper Co. v. Board, 42 Wyo. 67, 289 P. 1096; George Bolln Co. v. Freeman, 42 Wyo. 375, 294 P. 1110. That the legislature did not make the foregoing requirement merely on technical grounds, but based it on sound reasons, is so clearly illustrated in the case at bar that it may not be out of place to consider the facts here shown in some detail. Whether or not there is, or was, in fact, a misnomer in the name of the defendant is, of course, a question of fact, requiring some evidence. The record before us fails to disclose the evidence in this case, nor are there any findings of facts by the court from which we might be able to tell upon what theory the court gave its decision. We find three certificates of the clerk of court...