Pardee v. Kuster

• Decision Date: 07 October 1907
• Citation: 89 P. 572,15 Wyo. 368
• Parties: PARDEE v. KUSTER ET AL
• Court: Wyoming Supreme Court

89 P. 572

15 Wyo. 368

PARDEE v. KUSTER ET AL

Supreme Court of Wyoming

October 7, 1907

15 Wyo. 368 at 381.

Original Opinion of April 15, 1907, Reported at: 15 Wyo. 368.

Rehearing denied.

N. E Corthell, for plaintiff in error.

(On petition for rehearing.) The decision does not deal with the questions presented upon the assignments of error. The defendant filed no assignment of cross errors. The sufficiency of plaintiff's petition is not, therefore properly before this court. (Johnson v. Golden, 6 Wyo. 537; 2 Cyc., 1011; Bank v. Orr, 25 Ind.App. 71; Bldg. Asso. v. Thompson, 88 Ind. 407; Hanna v Barrett, 39 Kan. 446; Robb v. Henry (Tex.), 40 S.W. 1046; Board v. Water Co., 32 Colo. 382; Trust Co. v. Burke (Colo.), 85 P. 692-695; Stowell v. Spencer, 190 Ill. 453; Keller v. Scranton, 200 Pa. St. 130; Muller v. McLaughlin (Tex.), 84 S.W. 687; Norvell-Shapleigh Co. v. Hall N. & M. Works (Tex.), 91 S.W. 1092.)

If the codicil under which the plaintiff claims in this case was in law an addition to and a part of the original will, then it seems to us that the natural meaning which ought to be attached to the language in the second codicil ratifying and affirming the will must fairly be extended, not merely to the instrument executed on May 18, but also and in the same connection to the supplementary instrument executed May 19; in other words the testator's will of May 18, included at the time of the last codicil the addition which had been made thereto by the instrument dated May 19, and the natural and logical meaning which ought to be attached to the ratification and affirmation of the original will is that such will, with the addition made to it the following day, was ratified and confirmed. This is the natural import of the act itself and the language of the second codicil. It seems reasonable that the testator merely intended thereby to provide for the contingency of his son's death, and not to revoke the first codicil. The intention of a testator is not to be defeated by applying the rule that the republication of a will draws to it the date of the earlier instrument. (6 Ency. L., 199.) A prior codicil is not to be deemed revoked by a subsequent one referring to the will by date and affirming it without mention of the prior codicil. (6 Ency. L., 198; 1 Jarman on Wills, 358; Goods of Turner, 64 L. T., 805; Gelbke v. Gelbke (Ala.), 6 So., 834; Quincy v. Rogers, 63 Mass. 291.)

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

ON PETITION FOR REHEARING.

SCOTT JUSTICE.

The plaintiff in error has filed her petition for a rehearing upon the ground that the defendants in error filed no cross-assignment of error to the overruling of their demurrer to the petition. It is urged that in the absence of such cross-assignment the question of the sufficiency of the petition was not before the court. Taking that view, she submitted no oral argument thereon, nor did she refer to this question in her brief. The defendants in error called this court's attention to the question and devoted a considerable part of their brief to its discussion.

The case is analogous to Fell v. Muller, 78 Ind. 507, in which it was said: "The real question for discussion in this case is: Did the appellant's complaint state a cause of action in their favor against the appellee? If it did not state a valid or sufficient cause of action against the appellee, and we think it did not, then it is clear that the appellants were not harmed by any of the rulings of the trial court adverse to them and the judgment below must be affirmed." In that case there was no assignment of cross error and the decision turned on the provisions of the civil code of that state to the effect that no judgment shall be reversed by reason of any error or defect in the proceedings which does not effect the substantial rights of the adverse party. Sec. 3744, R. S. Wyo. 1899, is as follows: "No exception shall be regarded unless it is material and prejudicial to the substantial rights of the party excepting." In order that the exception may be considered, it must be material to a substantial right. It is just as essential to show a substantial right either by the pleadings or the record as it is to preserve the exception. A failure to do either would furnish no basis for a review of an alleged error. That there is no substantial right upon the whole case may appear from the allegations of the petition, though where there has been a trial it is not generally so, and in most cases that question involves an examination of the entire record. If the party complaining shows by his petition that no valid cause of action exists in his favor against the defendant, then he has failed to show a substantial right, and in such case any and all of his exceptions should be disregarded because harmless. It will be observed that the petition was not defective by reason of the absence of averment or want of allegation of an existing fact. The execution of the deed, its terms, the time and the purpose for which it was executed are alleged and taken in connection with the other allegations clearly set forth the claim of the plaintiff. She was bound by the allegations of her petition and nowhere, either in the record or by suggestion in the argument, does it appear, nor are we able to discover that any amendment could be made. The defect goes to the question as to whether she has any cause of action, or right to recover, upon a full and complete statement of all the facts. The error is fundamental in that it affirmatively appears that no allegation of an existing fact can be brought into the petition by way of amendment and thereby perfect it so that it would support a judgment in her favor. The error is not in failing to plead all the facts, but rested in an attempt to predicate a right of recovery upon a complete statement of facts when no such right exists. It is not the defective statement of a cause of action, but a showing of no cause of action. Such a petition can neither be cured by answer, verdict or judgment. (Gittings v. Baker, 2 Ohio St. 21.) This case is distinguishable from the Indiana cases (Anderson, &c., Assn. v. Thompson, 88 Ind. 405; Farmers' Bank v. Orr, 25 Ind.App. 71, 89, 55 N.E. 35) cited by plaintiff in error in support of her petition. In those cases the defect did not consist in the absence of any cause of action, but did consist in the omission of a material averment in the allegations of an existing cause of action. The theory of those cases is that by failing to demur or to assign cross error the pleadings were treated by the parties as being complete, and it was presumed that evidence was submitted and heard and findings made upon issues necessary to support a judgment even though there may have been an absence of averment of some material fact. (Secs. 471, 720, Elliott App. Proc.)

The defendants in error asked no affirmative relief--they had obtained a judgment in the court below with which they were satisfied. They sought neither to vacate nor modify it and did not assign the ruling on the demurrer as error prejudicial to them or at all. The finding and judgment being in their favor, the overruling of the demurrer was not available to them. (Blessing v. Blair, 45 Ind. 546; Rogers v. State, 99 Ind. 218; Reddick v Keesling, 129 Ind. 128; 28 N.E. 316; Allen v. Berndt, 133 Ind. 355; 32 N.E. 1127; Thrash v. Starbuck, 145 Ind. 673; 44 N.E. 543; Levi v. Allen, 15 Ind.App. 38; 43 N.E. 571.) Nor was the decision based upon the exception to such ruling. The presumption of the correctness of the judgment was necessarily against the contention of the plaintiff in error and the burden was on her not only to show error upon the record (Sec. 4249, R. S. 1899), but...