Stanton v. C. B. & Q. R. Co

• Decision Date: 26 June 1917
• Docket Number: 887
• Citation: 165 P. 993,25 Wyo. 138
• Parties: STANTON v. C. B. & Q. R. CO
• Court: Wyoming Supreme Court

165 P. 993

25 Wyo. 138

STANTON v. C. B. & Q. R. CO

No. 887

Supreme Court of Wyoming

June 26, 1917

25 Wyo. 138 at 142.

Original Opinion of June 26, 1917, Reported at: 25 Wyo. 138.

Rehearing denied.

BEARD, JUSTICE. POTTER, C. J., concurs.

OPINION

ON PETITION FOR REHEARING.

BEARD, JUSTICE.

This case was decided June 27, 1917, the opinion appearing in 165 P. 993. A petition for rehearing has been filed by plaintiff in error, in which complaint is made that neither the District Court nor this court has dealt justly with his cause. He insists that the trial in the District Court was ex parte and that his evidence, consisting of depositions of himself and his witnesses, was not considered on the trial. The facts are that those depositions were completed and certified by the officer before whom they were taken, December 2, 1914, but for some unexplained reason were not filed until after the case was tried and submitted to the court; nor does it appear that the court had any knowledge or information that the same had been taken. The case was set down for trial for April 29, 1915, and continued on plaintiff's application until June 21, 1915, at each of which dates plaintiff knew he should have his evidence present and be ready for trial if his request for continuance was denied. A party cannot withhold his evidence until after the case is tried, and then, after judgment against him, complain that he has been deprived of a fair trial.

He further urges that the decision in this court was by but two of its justices, and states in his brief, "I am denied the right of every suitor to have my points heard and considered by all the judges elected to fill the bench. Of course there are instances where such shortage on the bench may be inevitable, but no exceptional accident or excuse exists in this case, to refuse me the benefit of the learning and experience of every one of those whom the people have made judges." That statement is not warranted by the facts. Plaintiff was personally present and argued his case in this court, and knew that the late Justice Scott was then ill and unable to sit in the case. He never recovered sufficiently from that illness to participate in the work of the court, and departed this life September 26, last.

We discover no reason for departing from the decision as handed down, and a rehearing is denied.

POTTER, C. J., concurs.

Rehearing denied.