Owen v. Saratoga and Encampment Railway Company

• Decision Date: 06 November 1911
• Docket Number: 618
• Citation: 118 P. 652,19 Wyo. 409
• Parties: OWEN v. SARATOGA AND ENCAMPMENT RAILWAY COMPANY
• Court: Wyoming Supreme Court

118 P. 652

19 Wyo. 409

OWEN v. SARATOGA AND ENCAMPMENT RAILWAY COMPANY

No. 618

Supreme Court of Wyoming

November 6, 1911

ERROR to the District Court, Carbon County; HON. DAVID H. CRAIG, Judge.

Proceedings in error dismissed.

H. C. Brome and McMicken & Blydenburgh, for plaintiff in error.

Richardson & Hawkins, for defendant in error.

BEARD, CHIEF JUSTICE. POTTER, J., concurs. SCOTT, J., did not sit.

OPINION

BEARD, CHIEF JUSTICE.

The plaintiff in error, Henry E. Owen, instituted this action against the defendant in error, the Saratoga & Encampment Railway Company, in the district court of Carbon county. The petition set up three causes of action in separate counts. The defendant demurred to the first count, and the demurrer was sustained by the court, to which ruling plaintiff excepted. The cause proceeded to trial and judgment on the second and third counts, but no further order or judgment was made or entered as to the first count. It is solely upon the ruling of the court sustaining the demurrer that the cause is brought to this court. Counsel for defendant, in their brief, call the attention of the court to the fact that the record fails to show any final judgment as to the first count from which error could be prosecuted in this court; and asks that the proceedings in error be dismissed. Counsel for plaintiff, at the oral argument, very frankly conceded that if the transcript a the record as certified to this court is complete, then, under the statute and the decisions of this court, the proceedings in error should be dismissed, and asked leave to file an amendment to the record showing a final judgment against plaintiff on the first count if such fact appears by the record in the district court. And by agreement of counsel in open court such leave was granted. No amendment has been filed, and we are now advised by counsel for plaintiff that none can or will be filed. The record before us shows only the ruling sustaining the demurrer but no judgment thereon. Following the rule in Turner v. Hamilton, 10 Wyo. 177, 67 P. 1117, and cases therein cited, the proceedings in error will have to be dismissed.

Dismissed.

POTTER, J., concurs.

SCOTT, J., did not sit.