Spaugh v. Peterson

• Decision Date: 16 March 1926
• Docket Number: 1241
• Citation: 34 Wyo. 374,244 P. 224
• Parties: SPAUGH v. PETERSON [*]
• Court: Wyoming Supreme Court

244 P. 224

34 Wyo. 374

SPAUGH v. PETERSON ^[*]

No. 1241

Supreme Court of Wyoming

March 16, 1926

ERROR to District Court, Niobrara County; CYRUS O. BROWN, Judge.

Action by Anna T. Peterson, administratrix of the estate of H. J Peterson, deceased, against A. A. Spaugh. Judgment for plaintiff, and defendant brings error.

Affirmed.

Edwin L. Brown, for plaintiff in error.

This action was to recover possession of an automobile, on a conditional sales contract, and forfeit the payments made thereon, there being $ 1,125.00 remaining due. The petition shows on its face that defendant in error has no interest in the contract controlling the right of possession of the property. Action was not brought in the name of the real party in interest. 5580 C. S.; 4 Cyc. 98. The judgment is not res judicata against General Motors Acceptance Corporation. Assignor cannot sue upon a chose in action, after assignment. Conn v. Long Bell Co., 66 Mo.App. 483; Black on Judgments, 2, Sec. 610. The amended petition shows that defendant has no rights thereunder and there being no amendment to correct the defect, the judgment was invalid and should be reversed.

Bacheller and Bacheller, for defendant in error.

A demurrer one tenus is a general demurrer, U. S. F. & Co v. Fidelity Trust Co. , (Okla.) 153 P. 195, and admits all facts well pleaded. Edwards v. Cheyenne, 19 Wyo 110; St. v. Irvine, 14 Wyo. 318; St. v. Grant, 12 Wyo. 1. Ownership of the automobile is admitted by the demurrer. The gist of an action in replevin is wrongful detention. 6275 C. S. Boswell v. Bank, 16 Wyo. 209. Setting out of contract and petition was a mere allegation of evidence. Mudd v. Thompson, 34 Cal. 39; 5675 C. S.; Bates Pl. & Pr., Vol. 3, p. 580. Facts stated in a paper incorporated in a pleading are not allegations but merely evidence. 21 R. C. L. 476; 31 Cyc. 560; Brown v. Jones, (Ind.) 25 N.E. 452; Gulf C. & S. R. R. Co. v. Co., 270 F. 994; Mattero v. Co., (Mo.) 215 S.W. 750; McMannus v. Butler, (Mo.) 213 S.W. 447; Hartford Ins. Co. v. Kahn, 4 Wyo. 364. Where insufficiency of pleading is first questioned at the trial or on appeal, it must be supported by every legal intendment. Van Buskirk v. Co., 24 Wyo. 183; Grover Co. v. Ditch Co., 21 Wyo. 204; Fast v. Whitney, 28 Wyo. 443; Reynolds v. Morton, 23 Wyo. 528.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This is a replevin action in which the judgment was for the plaintiff. The case was here before on appeal, and the appeal was dismissed. 31 Wyo. 26; 222 P. 580. It is here now on error, but without a bill of exceptions. The only assigned error is that the petition is insufficient to support the judgment.

The objection to the petition is that it shows that plaintiff is not the real party in interest. We must treat the case as one where the petition is not challenged until after judgment. The answer raises no question as to the real party in interest. The record contains a demurrer to the petition, but does not show any order overruling it, and we may assume that it was waived by answer, although, of course, if the petition does not state facts sufficient to constitute a cause of action, that defect is not waived. Grover Irr. Co. v. Lovella Ditch Co., 21 Wyo. 204, 231; 131 P. 43, Am. Cas. 1915D 1207 L.R.A. N.S. 1916C 1275. When, however, the petition is not challenged until after judgment it must be construed liberally and supported by every legal intendment, and upheld if the necessary facts are fairly to be inferred from its allegations. Grover Irr. Co. v. Lovella Ditch Co., supra; Fast v. Whitney, 26 Wyo. 433, 440, 187 P. 192, and cases cited.

The property replevied is an automobile bought by defendant of plaintiff's intestate. A conditional sale contract provided that title should remain in the seller until the price was fully paid, and that he might take possession if the purchaser failed to comply with the terms of payment. The plaintiff alleged that under the contract the property belonged to her as the seller's administratrix and that, because of defendant's failure to meet the payments, she was entitled to immediate possession. The sufficiency of these allegations, if uncontradicted by other allegations, is not questioned. A copy of the conditional sale contract is set forth in full in the petition. Following the copy of the contract is a copy of a writing, headed "Dealer's Recommendation and Assignment," which recites, among other things, that "the undersigned, for value received, does hereby sell, assign and transfer to General Motors Acceptance Corporation" his interest in "the within contract and the property covered thereby." Below the copy of this writing appears the name of plaintiff's intestate. The defendant contends that this shows that General Motors Acceptance Corporation, and not the plaintiff, is the real party in interest. The contention cannot be sustained.

In view of the above-stated...