Redman v. Union Pac. Ry. Co

• Decision Date: 03 March 1892
• Citation: 3 Wyo. 678,29 P. 88
• Parties: REDMAN v. UNION PAC. RY. CO
• Court: Wyoming Supreme Court

29 P. 88

3 Wyo. 678

REDMAN v. UNION PAC. RY. CO

Supreme Court of Wyoming

March 3, 1892

Error to district court, Sweetwater county: JESSE KNIGHT, Judge.

Action in justice court by George Redman against the Union Pacific Railway Company. There was judgment for plaintiff, and defendant appealed to the district court. Plaintiff's motion to dismiss the appeal being overruled, he brings error. Affirmed.

Judgment affirmed.

E. E Enterline, for plaintiff in error.

Lacey &amp Van Devanter, for defendant in error.

MERRELL J. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

MERRELL, J.

The errors complained of in the petition in error in this court as having been committed in the district court, are: (1) The court erred in sustaining the motion of the defendant to amend the affidavit of appeal; (2) the court erred in denying the motion of plaintiff to dismiss the appeal; (3) the judgment of the court was contrary to law. This action was originally brought by plaintiff in error in the court of a justice of the peace, where plaintiff in error obtained a judgment. Defendant in error appealed to the district court, where judgment was reversed; but the first action invoked in the district court was by plaintiff in error by his motion to dismiss the appeal. One ground alleged for this motion was that no notice of intention to appeal was filed in the justice's court. It seems that such notice of intention had been filed, but was mislaid; it was afterwards found. One other ground is alleged for the motion to dismiss the appeal. It is that the affidavit for appeal was defective, because it was not signed by the affiant, and the jurat thereto was not signed by the justice who administered the oath. The district court permitted the affidavit to be amended by the signature of affiant (attorney for defendant in error) being subscribed thereto, and by the signature of the justice who administered the oath being subscribed to the jurat. These amendments were allowed upon a satisfactory showing by affidavits that the oath was actually administered to affiant by the justice at the proper time, and the signatures were omitted inadvertently. Section 2501 of the Code provides that the court may, before or after judgment, in furtherance of justice, amend any pleading, process, or proceeding, by adding or striking out the name of a party, or by correcting a mistake in any other respect. Section 7, act relating to appeals from justice of the peace, (Sess. Laws 1890, p. 55,) expressly authorizes amendment of the record, the language being as follows: "The district court may, in its discretion, allow amendments to the record in furtherance of justice." There is abundance of authority under statutes precisely like our own, that such amendments should be allowed. Irwin v. Bank, 6 Ohio St. 81; Van Halen v. Ridgeway, 1 W.L. Monthly 280; O'Dea v. Washington Co., 3 Neb. 118; Wilson v. Macklin, 7 Neb. 50; Pierce v. Butters, 21 Kan. 124; Watts v....