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

• Decision Date: 10 November 1930
• Docket Number: 1667
• Citation: 292 P. 897,42 Wyo. 214
• Parties: STATE EX REL. TIBBALS v. DISTRICT COURT OF THE NINTH JUDICIAL DISTRICT IN AND FOR FREMONT COUNTY, ET AL
• Court: Wyoming Supreme Court

292 P. 897

42 Wyo. 214

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

No. 1667

Supreme Court of Wyoming

November 10, 1930

ORIGINAL proceedings in mandamus and in prohibition 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. Heard on defendant's demurrer to relator's petition.

Demurrer Overruled.

For the respondent's demurrer, there was a brief and a reply brief by O. N. Gibson, of Riverton, Wyoming, and A. H Maxwell, of Lander, Wyoming, and oral argument by Mr. Gibson and Mr. Maxwell.

In support of respondent's demurrer to relator's application by original proceedings in this court, for a writ of mandamus in his first cause of action, and a writ of prohibition in the second, the following points and authorities are submitted. The issuance of a writ of mandamus is discretionary. 18 R. C. L. 137. It may be denied where it will operate inequitably or injure third person. 38 C. J 550, 558, 560, 561, and will be denied where relator has a plain, adequate, and speedy remedy in the ordinary course of the law. 18 R. C. L. 131. Relator's petition does not show demand for performance or refusal to perform by defendant. Such demand is necessary. 18 R. C. L. 123-4. The act complained of was discretionary. 18 R. C. L. 124; 38 C. J. 606. Relator has an adequate remedy in the ordinary course of the law and both applications should be denied. Ex Parte Ins. Co., 103 U.S. 561, 38 C. J. 614, 18 R. C. L. 133, 6319 C. S., 5 C. C. N. S. 57, 16 C. D. 404. Mandamus will not assume the function of a writ of error. State v. Ninth Judicial Dist., (Nev.) 161 P. 510. Its object is to command performance, not to revise or correct action, however erroneous it may have been. 18 R. C. L. 114, 38 C. J. 592. Its object is to compel performance of legal duties. Tillson v. Comm'rs., 19 O. 415; Frat. Circ. v. State, (O.) 48 N.E. 941. The following authorities were submitted after oral argument. Mandamus will not lie to correct errors committed by an inferior court in progress of a cause. Re Whitney, 13 Pet. 404; Re Newman, 14 Wall. 152; Re Loring, 94 U.S. 418; Re Perry, 102 U.S. 183; Re Baltimore & O. R. Co., 108 U.S. 566; nor to review, reverse or alter affirmative judicial action in exercise of legitimate jurisdiction. Re Pollitz, 206 U.S. 323; Raleigh v. Dist. Court, (Mont.) 61 P. 991; State v. Steiner, (Wash.) 87 P. 66; State v. Halsey, (Wis.) 136 N.W. 285; nor correct errors in judicial proceeding. Rankin v. Fletcher, (Ark.) 104 S.W. 933; Crocker v. Justices, (Mass.) 94 N.E. 369; nor perform the office of an appeal. Re Key, 189 U.S. 84. No bond is required for temporary restraining order. 13 Standard Enc. of Proc. 163, 6168 C. S. Although permissible, Offutt v. Wagoner, (Okl.) 120 P. 1019. Motion for new trial unnecessary to review order made on motion to dissolve injunction. Anderson v. Englehart, 18 Wyo. 196. It is a final order. Weaver v. Richardson, (Wyo.) 132 P. 1151. Court orders do not operate until entered of record. 5875 C. S., 15 Enc. Pl. and Pr. 331, 42 C. J. 530. Prior to entry, it is a mere judicial purpose. Broder v. Conklin, (Cal.) 33 P. 211; State v. Brown, (Wash.) 72 P. 88. The legal effect of orders must be determined as of the time of entry. 15 Enc. Pl. & Pr. 336, 240, 42 C. J. 532, 20 R. C. L. 513, 516. As to time, "instanter" means twenty-four hours. 42 C. J. 532. Statements from the bench were not a part of the record. Lapique v. Court, (Calif.) 141 P. 223. Only final judgments may be reviewed. Am. Con. Co. v. Rwy. Co., 148 U.S. 372; Lindsey v. Carlton, (Colo.) 96 P. 987. It was the duty of the trial court, to time proceedings in the Federal Gold Mining case, and the Spry estate case in a manner to prevent injustice. State v. Steiner, (Wash.) 87 P. 66; State v. Court, (Wash.) 143 P. 310.

The cause was submitted for the Relator on the brief of John J. Spriggs, of Lander, Wyoming, without oral argument.

Mandamus will lie to compel an inferior court to obey orders of appellate court. 18 R. C. L. 316. Galbreath v. Wallrich, (Colo.) 109 P. 417; Gaines v. Caldwell, 148 U.S. 228; Ry. Co. v. Hardy, (Okla.) 146 P. 38; Supreme Court may issue mandamus writ in the exercise of its appellate jurisdiction. The court will give whatever relief should be granted. Johnston v. Court, 288 P. 809. No appeal lies from a judgment entered in compliance with mandates of Supreme Court. 2 R. C. L. 289; Krantz v. Rio Grande, (Utah) 43 P. 623. No appeal lies in favor of unsuccessful intervener. Greenwalt v. Co., (Wyo.) 92 P. 1008. Right of appeal is regulated by statute. 2 R. C. L. 27. Intervention must be in good faith and made in time. 15 R. C. L. 231. Hibernia Bank v. Churchill, (Cal.) 61 P. 279. It is too late after mandate issued on appeal. Flint v. Chalopha, (Neb.) 115 N.W. 535; Smith v. Gale, 144 U.S. 509. It is never permitted after judgment. U. S. v. Northern Securities Co., 128 F. 808. The order denying application for intervention could not be changed after the second order. City of Los Angeles v. Oliver, 283 P. 298; Federal Gold Mining Co. was not in fact a party. 15 R. C. L. 1009 and cases cited. Barquin v. Hall Oil Co., 237 P. 255; Martel v. Hall Oil Co., 253 P. 862. Adverse possession involves hostile entry and exclusion of lawful owners. 1 R. C. L. 703. Attorneys cannot represent conflicting interests. Tabler v. Harlin, 288 P. 824. Plaintiff's dismissal without prejudice is a legal right. 5897 C. S. Mandamus is proper remedy for denial of this right. State v. Court, 166 P. 69. Intervener has no right of appeal. 29 R. C. L. 207. Intervention must be before trial. 5603 C. S. Denial of application to intervene is an adjudication. City of Los Angeles v. Oliver, 283 P. 298. The attempted intervention was collusive. Only parties named in the record may be parties to a judgment. 15 R. C. L. 1009. The principle of estoppel applies here. Materson v. Bank, 150 P. 1126. The corporation is bound by the judgment as well as the nominal parties. Peut v. LaCompagne, 217 U.S. 846; Goodeagle v. Moore, 214 P. 725; Also Hall Oil Co. v. Barquin, 237 P. 285; and Martel v. Hall Co., 253 P. 862; Barquin v. Hall Co., 210 P. 352. Plea of adverse possession set up in application for restraining order is absurd under the facts in this case. 1 R. C. L. 687. The answer praying affirmative relief was filed after the motion to dismiss. The following authorities were submitted after oral argument, to meet additional authorities submitted by respondents after oral argument. As to second cause of action in which relator seeks writ of prohibition against trial court, relator cites in support of his right to dismiss Case 4212 filed below. Right to dismiss is absolute any time prior to answer seeking affirmative relief. Goin v. Chute, (Ore.) 270 P. 492; Reed v. Rocap, 9 N. J. L. 349; and it is unaffected by judicial discretion. Herr v. Schwager, (Wash.) 234 P. 446; Donohoe Co. v. Superior Court, 252 P. 659; Anderson v. Court, 200 P. 963. Right is fixed by statute. Wehe v. Mood, (Kas.) 75 P. 476; Harris v. Houck, 197 P. 575; Spencer v. Ensign, 196 P. 669; plaintiff can dismiss without prejudice. Cott v. Baker, 210 P. 651; but must pay cost. Hough v. Co., (Nev.) 274 P. 192. Dismissal before trial destroys jurisdiction. Wood v. Hines, 254 P. 847. Mandamus will lie to require dismissal order. Yusky v. Chief, 236 P. 457. Dismissal order is ministerial. Boyd v. Steele, (Ida.) 59 P. 21. Writ of prohibition will lie to cover order of dismissal. Ramsey v. Court, 193 P. 733. Right exists from the time of motion. Kaufman v. Superior Court, 46 P. 904; State v. Court, 79 P. 546. Supreme Court will construe its own mandate. State v. Smith, 280 P. 433. Mandamus will issue on the mandate. Darris v. Court, 247 P. 695. Order denying intervention is valid until set aside. Eisenberg v. Court, 226 P. 618. Lower court was governed by mandate from Superior Court. Ketchum Co. v. Christensen, 159 P. 543.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

This is an original proceeding in this court, in which the relator asks for a writ of mandamus in the first cause of action and for a writ of prohibition in the second. The respondents have demurred to the petition, claiming that the facts stated are insufficient to constitute a cause of action. The demurrer has been argued and is now up for disposition. The following facts appear from the petition: Case No. 4182, of Fremont County, Wyoming, entitled Tibbals v. Keys, et al., was appealed in this court. Tibbals v. Keys, 40 Wyo 524, 281 P. 190. The judgment of the trial court was modified; a trust was declared in certain real property in the sum of $ 17,500, and the property was directed to be sold. A mandate from this court was issued accordingly. On April 26, 1930, judgment was rendered in the court below in accordance with such mandate. Previous thereto, however, on March 11, 1930, the Federal Gold Mining Company had filed an application in that case to be permitted to intervene, claiming to be the owner of the property. That right was denied by an order of April 26, 1930. Notice of appeal from this order was given and a supersedeas was granted pending appeal to this court. On April 26, 1930, there was also pending in the District Court of Fremont County another case, numbered 4212, in which Tibbals was plaintiff and the Federal Gold Mining Company was defendant, and in which the plaintiff sought to litigate rights in the same property involved in Tibbals v. Keys, et al. Up to, and including part of, the date last mentioned, the case was pending on demurrer, and before any answer asking affirmative relief was filed, Tibbals, the plaintiff, moved the court to dismiss ...