Smith v. Healy

• Decision Date: 18 February 1904
• Parties: SMITH ET AL. v. HEALY ET AL
• Court: Wyoming Supreme Court

75 P. 430

12 Wyo. 218

SMITH ET AL. v. HEALY ET AL

Supreme Court of Wyoming

February 18, 1904

RESERVED questions from the District Court, Weston County HON. JOSEPH L. STOTTS, Judge.

The case came up on reserved questions, and also on a motion filed by defendants for the dissolution of an injunction granted in the District Court. The facts are stated in the opinion.

Motion denied.

M. B Camplin and W. S. Metz, for plaintiffs.

E. E Lonabaugh, for defendants.

The briefs discussed the propositions involved in the questions attempted to be reserved, which the court declined to consider for want of jurisdiction.

POTTER, JUSTICE. CORN, C. J., and KNIGHT, J., concur.

OPINION

POTTER, JUSTICE.

In this case it appears that suit was brought by the plaintiffs in the District Court against the defendants, and a temporary injunction was ordered by the District Court Commissioner, as prayed for in the petition, restraining the defendants from entering upon certain lands with sheep and grazing sheep thereon, or watering them from the waters on said lands. It further appears that on the 3d day of January, 1903, the cause was brought on for hearing before the District Court upon a motion to require the petition to be made more definite and certain, which motion was granted, and the amendment made, whereupon on the same day the cause came on further to be heard upon the demurrer of the appearing defendants to the first cause of action contained in the amended petition. On consideration of said demurrer, the court ordered that certain lands be released and discharged from the operation of the restraining order, and that, as so modified, said restraining order be continued in force until the further order of the court. And thereupon the court found, as shown by the record, "that difficult and new questions have arisen in the consideration of said demurrer herein, and that said new and difficult questions should be certified to the Supreme Court of Wyoming for its determination," and it was ordered as follows: "It is hereby further adjudged and ordered that the Clerk prepare and certify the record herein upon the demurrer filed herein, and the difficult and new questions involved therein, to the Supreme Court of this State for its answer and determination." On the 8th day of January, 1903, an order was entered nunc pro tunc as a part of the order of January 3d, dissolving the injunction as to certain lands and continuing it in force as to other lands. In this condition the record remained until September 7, 1903, when the following entry was made: "The above entitled cause coming on for hearing upon the motion of defendants that the cause be dismissed, and the court being fully advised in the premises, doth deny said motion, and doth order that the questions of a new and difficult nature, heretofore ordered certified to the Supreme Court, be prepared, and that said cause be duly certified to said Supreme Court in pursuance of said mentioned former order of this court."

On the 24th day of September, 1903, there appears to have been filed with the Clerk of the said District Court an order, signed by the Judge, purporting to state the difficult questions upon which the decision of the Supreme Court was required. That order shows that the issue before the court arose upon a general demurrer to the first cause of action, and then proceeds as follows: "It is considered by the court that the issue thus formed raises an important and difficult question, far reaching in its effects. Wherefore, upon the court's own motion, the matter is reserved to, and the same is hereby ordered to be sent to the Supreme Court of the State of Wyoming for its decision thereon, each of said parties to pay one-half the docket fee, and the costs which each may incur. It is further ordered by the court that the Clerk of this court transmit the original papers in the case involving the questions reserved to the Clerk of the Supreme Court, there to be dealt with as the law provides." The order then proceeds to state the questions reserved. It is unnecessary to here repeat them. It is sufficient to say that, as conceded by counsel for both parties, they are not constitutional questions.

When the order of January 3, 1903, was made and entered, the statute for the reservation of questions for the decision of this court was as follows: "When an important or difficult question arises in an action or proceeding, pending before the District Court in any county of this State, the Judge of said court may, on motion of either party, or upon its own motion, cause the same to be reserved and sent to the Supreme Court for its decision." (R. S., Sec. 4276.) By an act of February 21, 1903, which took effect on that date, said section was amended to read as follows:

"When an important and difficult constitutional question arises in an action or proceeding, pending before the District Court in any county of this State, the Judge of said court may, on motion of either party, or upon his own motion, cause the same to be reserved to the Supreme Court for its decision. Provided, That all cases pending when this act shall take effect, in which other than constitutional questions shall have been heretofore reserved for the decision of the Supreme Court, shall be conducted to a decision of such questions in said Supreme Court in all respects as now provided by law." (Laws 1903, Ch. 72.)

It may be conceded, without deciding it, that had an order been regularly made lawfully reserving any questions to this court for its decision, so as to confer power or jurisdiction upon this court to act upon and determine them, the case might be considered as "pending" within the meaning of the proviso of the act of 1903, although the papers had not reached this court at the time of the enactment of said amendatory statute. By the amended statute the jurisdiction of this court to consider and decide important and difficult questions arising in an action or proceeding, upon the reservation of such questions before judgment, is limited to constitutional questions. The questions reserved in this cause being other than constitutional in character, the serious question arises whether, upon the record, this court is possessed of jurisdiction to hear and decide them. We have no disposition to avoid a decision of the questions reserved in this or any other case if the power to do so is conferred upon the court; but, on the other hand, this court has no right or authority to assume a power it does not have, and which has been expressly and intentionally taken from it. The questions suggested by the learned District Judge are important and no doubt difficult, and the convenience and interest of the parties might possibly be better subserved if they could be decided in this proceeding. Yet we must refuse to consider them unless jurisdiction to do so has been vested in the court.

It will be observed that the order of January 3, 1903, fails to designate the questions arising in the case deemed by the court to be important and difficult, and they are not stated in any form except in the order filed in the office of the Clerk of the District Court September 24, 1903. In the earliest case arising under the statute authorizing the reservation of questions to the Supreme Court for its decision, decided in September, 1888, it was held that, in the absence of a statement of the questions, the Supreme Court was without jurisdiction. In that case the order of the District Court certified that there were difficult and important questions involved, but it failed to state what those questions were. The court said:

"We conceive it to be indispensable to any action by this court...