Rocky Mountain Packing Co. v. Branney

Decision Date10 June 1964
Docket NumberNo. 3199,3199
PartiesROCKY MOUNTAIN PACKING CO., Inc., Appellant (Intervenor below), v. Frances BRANNEY, Appellee (Plaintiff below). V. J. Simms and Bonita W. Simms (Defendants below).
CourtWyoming Supreme Court

Arthur F. Fisher, Casper, for appellant.

Jerry A. Yaap, Raymond B. Whitaker, of Whitaker & Yaap Casper, for appellee.


Mr. Justice GRAY delivered the opinion of the court.

On October 16, 1962, appellee, Frances Branney, commenced an action in conversion for damages in the sum of $1,000.00 against the defendants, V. J. Simms and Bonita W. Simms, hereinafter identified as 'debtors'; and on the same day, charging that debtors had absconded with intent to defraud creditors, caused a writ of attachment to issue out of the district court accompanied by a notice of garnishment to the Wyoming National Bank, Casper, Wyoming. Service of the writ and notice was made on the same day, and on October 24, 1962, garnishee answered that it had in its possession and under its control the sum of $998.07 belonging to debtors. In the meantime, on October 19, 1962, appellant Rocky Mountain Packing Co., Inc., another creditor of debtors, commenced an action on an open account against debtors and also caused a writ of attachment and notice of garnishment to be served on the Wyoming National Bank. Following this, appellant filed its application to intervene in appellee's action. In essence, the pleading of appellant as a result of its garnishment alleged a lien upon the funds in the hands of the garnishee; alleged that appellee's action was wholly without merit; alleged that it was a mere fraudulent pretense to acquire funds belonging to the debtors; and by its proffered answer prayed that appellee's attachment and garnishment be voided. Appellee denied the charges of appellant and asked that appellant's application to intervene be denied. Thereupon the trial court proceeded to hear the matter and by order to which further reference will be made, granted the intervention.

Upon trial, the court found generally for the appellee against debtors and appellant; entered judgment for appellee in the full amount of the sum garnisheed; and directed that the garnishee forthwith deposit said sum with the clerk of court for satisfaction of appellee's judgment. Appellant appeals from the judgment entered and from the order granting it the right to intervene.

The complaint of appellant concerning the order permitting intervention is that it unduly restricted appellant's participation in the proceedings by attempting to confine the issues between appellant and appellee to the charge of fraud. In this connection it should also be noted that while appellee at all times vigorously resisted the intervention of appellant, she has not appealed from the order allowing it. For that reason we shall assume without deciding that appellant is correct in its basic premise that it came into the action as a matter of right and therefore as intervenor its participation could not be so limited. Notwithstanding, we find no basis for appellant's complaint.

By its application appellant asked to be let in for the purpose of showing that appellee's claim of conversion 'is completely without merit and the above entitled action was filed merely as a means of attempting to acquire' moneys belonging to debtors. At the time it also tendered a proposed answer to appellee's action, which in substance simply reiterated the charges made in the application but in addition contained a general denial of appellee's complaint. The prayer was for the court to determine that appellee's attachment was 'completely without merit and without any legal foundation whatever and is therefore void' and further that appellant's attachment be adjudged as 'legally authorized' pursuant to its 'just claim' against debtors.

Upon hearing, the trial court as indicated above granted intervention; and while it is true that the order by way of summarization might be regarded as indicating that appellant was limited as contended, we do not so read it. The significant language is that appellant 'is hereby allowed to intervene in the above entitled action for the purpose of showing that the plaintiff's claim against the defendants is completely without merit and that the same was filed merely as a means of attempting to secure unto her possession certain moneys which have been attached and which are on deposit with the Wyoming National Bank, of Casper.' Compare this with appellant's stated purposes for intervention as made in its application. The substance is the same. Of course, we would readily agree that the order is somewhat ambiguous and that the meaning of the language employed is unclear as demonstrated by the difficulty encountered by the trial court and counsel in the trial of the case. Nevertheless, it would seem that appellant, having employed the language in the first instance and having had its request granted in full by the order assailed, can scarcely be heard here to complain.

Further than this, appellant admits that even though terms of the order could be regarded as imposing limitations in deprivation of its claimed rights, such limitations were not enforced and the record bears this out. Appellant's answer was permitted to stand; appellee was required to go forward with proof to establish her claim against debtors; appellant's counsel was accorded unrestricted cross-examination of appellee's witnesses; and appellant without hindrance was permitted to introduce evidence on its own behalf, all of which went to the merits of appellee's claim. Under the circumstances, if there was error in the terms of the order, it is not shown here that such error in any way prejudiced appellant.

Reverting now to the claimed erroneous judgment, appellant first argues that there was insufficient evidence to sustain the judgment upon appellee's theory of conversion. We need not dwell upon that contention for the reason that by way of amendment to her complaint appellee stated an alternative claim against debtors for breach of contract, and as we view it the record sustains the judgment on that theory. Of course, appellant does not concede that the amendment is properly before us, but we hold that it is. It was first offered and allowed at the pretrial conference, subject to a showing of prejudice by appellant which was never made. Further than this, no objection was made to evidence introduced by appellant to sustain such claim, and under Rule 15(b), W.R.C.P., the pleadings are deemed...

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13 cases
  • Texas West Oil and Gas Corp. v. Fitzgerald, s. 86-9
    • United States
    • Wyoming Supreme Court
    • October 21, 1986
    ...Texas West relies concern market value as a measure of damage for the loss or destruction of personal property. Rocky Mountain Packing Co. v. Branney, Wyo., 393 P.2d 131 (1964); Rogers v. Hansen, Wyo., 361 P.2d 676 (1961). We are unable to conclude or infer from the evidence presented to th......
  • Nehring v. Russell
    • United States
    • Wyoming Supreme Court
    • July 7, 1978
    ...record on appeal reflects sufficient substantial evidence to support the trial court's finding in that regard. Rocky Mountain Packing Co. v. Branney, Wyo.1964, 393 P.2d 131. After work on the pump house was completed late Sunday evening, plaintiff and defendant, by mutual agreement, decided......
  • Andersen v. Corbitt, 88-176
    • United States
    • Wyoming Supreme Court
    • June 27, 1989
    ...assessment that a person injured shall only receive compensation commensurate with his loss, and no more. Rocky Mountain Packing Co. v. Branney, Wyo., 393 P.2d 131, 135 (1964); Hunt v. Thompson, 19 Wyo. 523, 120 P. 181, 184 Willmschen v. Meeker, 750 P.2d 669, 673 (Wyo.1988). Damages are to ......
  • Ely v. Kirk, 85-32
    • United States
    • Wyoming Supreme Court
    • September 12, 1985
    ...Company, supra; Belle Fourche Pipeline Company v. Elmore Livestock Company, Wyo., 669 P.2d 505, 511 (1983); Rocky Mountain Packing Co. v. Branney, Wyo., 393 P.2d 131, 134 (1964); Redwine v. Fitzhugh, 78 Wyo. 407, 329 P.2d 257, 263, 72 A.L.R.2d 664 (1958). Although a before and after valuati......
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