The Western Alfalfa Milling Co. v. Worthington

• Decision Date: 15 November 1922
• Docket Number: 1095,1097
• Citation: 210 P. 280,29 Wyo. 56
• Parties: THE WESTERN ALFALFA MILLING CO. v. WORTHINGTON; SAME v. DUNN
• Court: Wyoming Supreme Court

210 P. 280

29 Wyo. 56

THE WESTERN ALFALFA MILLING CO. v. WORTHINGTON;

SAME v. DUNN

Nos. 1095, 1097

Supreme Court of Wyoming

November 15, 1922

ERROR to the District Court, Platte County; HON. WILLIAM C MENTZER, Judge.

Motion to dismiss denied.

M. A Kline, O. O. Natwick and Gillette & Clark, for plaintiff in error.

J. E Jacobson and Kinkead, Ellery & Henderson, for defendants in error.

The petitions in error, in each of the above cases, failed to describe to a certainty the causes wherein the errors were alleged to have occurred and the judgment sought to be reviewed. The attempted description of the judgments makes no reference whatever to the causes in the lower court and fails to identify either of them, and therefore, fail to comply with Rule No. 10 of this court. (Board of Comm'rs. v Shaffner, 10 Wyo. 181, 68 P. 14; Hall Oil Co. v. Barquin (Wyo.) 201 P. 160; Farmers State Bank v. Bank, 140 P. 1150 (Okla.); Fitzpatrick v. Rogan, 197 P. 565 (Wyo.) ; Riordan v. Horton, 94 P. 448 (Wyo.) .)

The proceedings in both cases should be dismissed.

KIMBALL, Justice. BLUME, J., and RINER, District Judge, sitting in place of Potter, Ch. J., who is ill, concur.

OPINION

KIMBALL, Justice.

The petitions in error in these two cases are in the same form. In each case the defendant in error has moved to dismiss the proceeding for the reason that the petition does not comply with Supreme Court Rule 10, which requires that a petition in error shall describe with reasonable certainty the cause wherein the errors are alleged to have occurred, and the judgment or final order to be reviewed. This provision of our rule has been noticed in the cases of Commissioners v. Shaffner, 10 Wyo. 181, 68 P. 14; Riordan v. Horton, 16 Wyo. 363, 94 P. 448; Fitzpatrick v. Rogan, 27 Wyo. 388, 197 P. 565, and Hall Oil Co. v. Barquin, (Wyo.) 28 Wyo. 151, 201 P. 160.

The petition in error in case No. 1095, after the title of the proceeding, reads in part as follows:

"Comes now the above named plaintiff in error, and represents and shows to this Honorable Court, that on the 15th day of December, 1921, a judgment was made and entered by the District Court of the County of Platte, State of Wyoming, in favor of the above named defendant in error and against the above named plaintiff in error for the sum of $ 1412.59, and there was manifest error in the record of the proceedings and judgment in said cause in the following respects, to-wit: --"

The assignments of error are then set forth. The plaintiff in error claims that the quoted paragraph, together with certain statements contained in the assignments of error, describes with reasonable certainty both the cause and the judgment. This we deem it unnecessary to decide. Plaintiff in error has asked leave to amend the petition in error by inserting in the proper place the title of the cause in the court below and it is admitted that if this amendment be made the petition will then comply with the rule. As we are of opinion that the amendment should be permitted, we shall not inquire whether the petition might be construed as sufficient without...