State ex rel. Tibbals v. District Court of Ninth Judicial District In And for Fremont County, 1667

• Decision Date: 10 February 1931
• Docket Number: 1667
• Citation: 42 Wyo. 417,295 P. 916
• Parties: STATE EX REL. TIBBALS v. DISTRICT COURT OF NINTH JUDICIAL DISTRICT IN AND FOR FREMONT COUNTY, ET AL
• Court: Wyoming Supreme Court

295 P. 916

42 Wyo. 417

STATE EX REL. TIBBALS v. DISTRICT COURT OF NINTH JUDICIAL DISTRICT IN AND FOR FREMONT COUNTY, ET AL

No. 1667

Supreme Court of Wyoming

February 10, 1931

ORIGINAL proceeding in mandamus by the State, on the relation of Barney N. Tibbals, against the District Court of the Ninth Judicial District in and for Fremont County and another. On motion for judgment on the pleadings. See also 42 Wyo. 214 292 P. 897.

For the relator there was a brief by John J. Spriggs, of Lander Wyoming, in support of the motion for judgment on the pleadings.

The case has already been determined by the decision of this court overruling respondents demurrer to the petition. Respondent has since answered and relator now moves for judgment on the pleadings. The only point involved is whether respondent has offered a valid defense in his answer. The answer admits that plaintiff moved the court below to dismiss while the case was pending, which motion was denied. Counsel for respondents, in their relation to the controversy involving the property here in suit, appear to represent conflicting interests, which is not permissible. Hogan v Thrasher, 233 P. 607. The writ of mandamus should issue without delay. Relator should not be compelled to stand by, restrained from securing the fruits of his judgment in another case, while labor liens of $ 18,000.00 have been run up and incurred since the restraining order was issued and the property foreclosed under these liens. Respondent court has failed to state a defense. On the record, relator is entitled to judgment on the pleadings, with provisions for his costs, expenses, attorney fees and damages.

No briefs were filed for respondent other than briefs filed by O. N. Gibson, of Riverton, Wyoming, and A. H. Maxwell, of Lander, Wyoming, which were considered at the former hearing.

OPINION

Per Curiam.

In considering the petition when challenged by demurrer, we held (42 Wyo. 214, 292 P. 897) the alleged facts sufficient to show relator was entitled on his own motion to dismiss without prejudice his action, No. 4212, pending in the District Court of Fremont County, and that, on the District Court's refusal to permit the dismissal, relator was entitled to relief by writ of mandamus requiring the dismissal of that action and the resulting vacation of an order restraining the execution of a judgment in another action, No. 4182, in the same court.

Since the overruling...