Stein v. Schuneman

• Decision Date: 17 January 1929
• Docket Number: 1514
• Citation: 39 Wyo. 476,273 P. 543
• Parties: STEIN, ET AL. v. SCHUNEMAN [*]
• Court: Wyoming Supreme Court

273 P. 543

39 Wyo. 476

STEIN, ET AL. v. SCHUNEMAN ^[*]

No. 1514

Supreme Court of Wyoming

January 17, 1929

ERROR to District Court, Laramie County; WILLIAM A. RINER, Judge.

Action by Elizabeth Schuneman against Wellington C. Stein and others. Judgment for plaintiff, and defendants bring error. Heard on motion to dismiss.

Motion to dismiss granted.

Kinkead & Pearson, for the motion.

The errors complained of, require a motion for a new trial. Henry Altman and Louisa M. Stein did not move for a new trial Wellington C. Stein alone filed a motion for a new trial; the three defendants filed a joint petition in error, complaining of the denial of the separate motion of Wellington C. Stein for a new trial; and he being the only defendant that excepted to the ruling of the lower court, Louisa M. Stein has no interest in the subject matter, of the action and has no standing here. Dukek v. Gross, 36 Wyo. 30, 3 C J. 623. Altman not having preserved an exception, has no standing here; however meritorious the motion for a new trial may have been as to Wellington C. Stein, it cannot support the joint petition in error filed herein. North Platte Milling Co. v. Price, 4 Wyo. 293, 306. Greenawalt v Company, 16 Wyo. 226. Ditch Co. v. Peterson, 18 Wyo. 402; Meadow v. Blonde, 34 Wyo. 397. A joint assignment of error must be good as to all who join; 2 Cyc 1003; therefore the first assignment of error is insufficient and the second assignment of error presents no question for review. Hall Co. v. Barquin, 28 Wyo. 101; Leech v. Frederick, 36 Wyo. 121.

W. L. Walls, for W. C. Stein, contra.

The decree runs against all of the defendants severally; it is true that Louisa M. Stein and Henry Altman did not move for a new trial, and no final order was made against them, hence the Court is without jurisdiction to hear their petition in error. Wellington C. Stein having moved for a new trial, and having excepted to the denial thereof, is entitled to a review in this Court. The petition in error while joint, is also sufficient as to those of the defendants over whom this court may have jurisdiction. The case of Greenawalt v. Company is distinguishable from the case at bar and the same may be said of the other Wyoming authorities relied upon in support of the motion to dismiss. But the defendants, Louisa M. Stein and Henry Altman, not having preserved their exceptions to the decree and said decree being joint and several, Wellington C. Stein, who has preserved his rights, is entitled to have the record, and the judgment of the lower court reviewed.

Kinkead & Pearson, in reply.

A petition in error and the service of a summons in error, conferring jurisdiction upon this Court, whether a motion for a new trial was filed or not, becomes material only for the purpose of determining, whether exceptions to the errors complained of, have been properly preserved. This case is not distinguishable from those we have cited in support of the motion. The question here is not one of jurisdiction, as the petition in error gives this Court jurisdiction to inquire as to whether any ground of error is properly presented for review. Our contention is that while the errors are urged jointly by three persons, only one of them presented the errors complained of by motion for a new trial. In view of this situation, this Court cannot take cognizance of the errors assigned jointly by plaintiffs in error, and the proceedings should be dismissed.

Argued before BLUME, C. J., KIMBALL, J., and BROWN, District Judge. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

BROWN, District Judge.

This case comes to this court on error proceedings from a judgment rendered in the District Court of Laramie County, in favor of the defendant in error and against the plaintiffs in error. Plaintiff in error, Wellington C. Stein, filed a motion for a new trial in the lower court and took an exception to the order overruling the same. Neither of the other defendants below joined in this motion nor filed separate motions for new trial, the motion of Wellington C. Stein being the only motion in the record. The petition in error filed in this court for the review of the judgment of the lower court is the joint petition of all of the plaintiffs in error. The case was heard in this court on a motion to dismiss. The petition in error contains but two assignments of error, to-wit: "1. That the District Court did error in denying the defendants motion for a new trial. 2. That the District Court did error in giving, making and entering its said decree." The second assignment of error is insufficient to present any question for our consideration. An appellate court will not search the whole record for possible errors. Each error presented for review must be definitely and specifically stated. We said in Hall Oil Company v. Barquin, 28 Wyo. 151, 201 P. 160, and reiterated in Leach v. Frederick, 36 Wyo. 121, 253 P. 669:

"It states no proposition or point to be considered in determining whether or not there was error in rendering and entering the judgment."

It is contended by the defendant in error that the motion to dismiss should be sustained under the familiar rule that where an assignment of error is joint it must be good as to all or it must fail as to all. Since neither Henry Altman nor Louisa M. Stein filed a motion for new trial manifestly the first assignment of error is not good as to them. It is conceded by her counsel that Louisa M. Stein had no interest in the controversy. She was made defendant below solely because she is the wife of Wellington C. Stein. No judgment was rendered against her. Since she had no interest in the controversy, and there is no judgment against her, no assignment of error could be good as to her.

We think the motion to dismiss must be sustained. This court early in its history adopted the rule that a joint motion for a new trial must be good as to all of the parties uniting therein or it would be construed to be bad as to all. North Platte Milling Company v. Price, 4 Wyo. 293, 33 [39 Wyo. 480] P. 664. The question has been before the court in numerous occasions since that time and the rule therein adopted consistently adhered to. Hogan v. Peterson, 8 Wyo. 549, 59 P. 162; Greenawalt v. Natrona Improvement Company, 16 Wyo. 226, 92 P. 1008; Shedd Ditch Co. v. Peterson, 18 Wyo. 402, 108 P. 72; McIntosh v. Wales, 21 Wyo. 397, 134 P. 274; Wilson v. Canal Co., 22 Wyo. 427, 143 P. 345; McManus v. McGrath, 20 Wyo. 500, 126 P. 44; Meador v. Blonde, 34 Wyo. 397, 244 P. 222.

In the Greenawalt case, supra, the court had before it the question of a joint assignment in error. After discussing the rule as applied to joint demurrers, joint motions for new trial and joint assignments of error, the court said:

"The rule rests upon the principle that it would be manifestly unjust to disturb the rights of some of the parties which have been correctly determined on the application of one whose rights are separate, distinct and severable therefrom. A party's individual rights may be preserved upon a several or upon a joint assignment of error, but if the error be jointly assigned, the relief, if any, is also joint, and if each party joining in the assignment is not entitled to the relief, the assignment will be overruled."

The question of a joint assignment of error where a motion for new trial was filed by a single defendant has been before the appellate court of Indiana several times. The...