Turner v. Hamilton

• Decision Date: 19 March 1902
• Citation: 67 P. 1117,10 Wyo. 177
• Parties: TURNER v. HAMILTON
• Court: Wyoming Supreme Court

67 P. 1117

10 Wyo. 177

TURNER v. HAMILTON

Supreme Court of Wyoming

March 19, 1902

ERROR to District Court, Natrona County, HON. CHARLES W. BRAMEL Judge.

This was an election contest. The petition was demurred to and the demurrer was sustained. A motion for rehearing on the demurrer was filed and denied. The plaintiff excepted to the rulings. No judgment was rendered in the action. Plaintiff brought the case here on error.

Petition in error dismissed.

Alex T Butler, for plaintiff in error.

A ruling sustaining a demurrer on the ground that the petition fails to state facts sufficient to constitute a cause of action is a final order. (Williamson v. Kansas & T. Coal Co., 50 P. 106.) Statutes providing for appeals are remedial and to be liberally construed. (Brown v Evans, 18 F. 56; Rutherford v. Ins. Co., 1 Fed., 456.) This being an election contest and not a civil action or equity case, it is a special proceeding under the statute definition of such a proceeding. (6 Colo. 340.) Defendant's pleading was called a demurrer, but was in fact an answer, and brought up for consideration the facts and the law, and this is particularly true of an action of this kind. In an election contest such a ruling as was made in this case is a final order. (Watson v. Mayberry, 49 P. 479.) Whether a decree is final or not is determined on a consideration of what was done, and not by the name of the proceeding. (Potter v. Beal, 50 F. 860; 6 Dak., 94; Lloyd v. Sullivan, 24 P. 218.) Plaintiff was refused leave to amend her petition. This was an abuse of discretion. (R. S., Sec. 3585; id., 3588, 3590; Clark v. Clark, 20 O. St., 128; Brock v. Bateman, 25 id., 609; Sawin v. Pease, 6 Wyo., 91; Sch. Dist. v. West. Tube Co., 5 Wyo., 185.) The plaintiff would have been obliged to suffer judgment on her original pleading without amendment; and nothing was left but to appeal. There was nothing more for the court to do in the case. Hence an appeal lies. (Greely v. McCoy, 54 N. W., 659 (Mich.); Yaple Pl., Vol. 1, p. 1.)

Fred D. Hammond and W. R. Stoll, for defendant in error.

There is only one point necessary to be considered to dispose of this case. It is the absence of any judgment or final order in the case.

That this court can reverse, vacate or modify only upon a judgment or final order being made in a case like the one at bar, is the express provision of Sec. 4249, R. S., Wyo.; and the definition of a final order is given in Sec. 4247, R. S., Wyo. A mere glance at the record and these sections is all that is necessary to see that there is nothing before this court to reverse, vacate or modify.

It is deemed unnecessary to cite any authorities, but the following are referred to as cases in which this question has been passed upon, and the law repeatedly announced by this court to the effect that an appeal will lie to this court only when a final judgment has been rendered in the case or a final order made therein as defined by Sec. 4247, R. S., Wyo. (Menardi v. O'Malley, 3 Wyo., 327; Gramm v. Fisher, 3 Wyo., 595; Gramm v. Fisher, 4 Wyo. 1; Kahn v. Traders' Ins. Co., 4 Wyo., 419; Daley v. Anderson, 7 Wyo. 1.)

KNIGHT, JUSTICE. POTTER, C. J., and CORN, J., concur.

OPINION

KNIGHT, JUSTICE.

Attorney for plaintiff in error in his second brief filed in this court makes the following statement of his case, which seems to be correct as far as it goes, and is as follows:

"This action was originally commenced by plaintiff in error filing her petition in the District Court. Defendant in error demurred to the petition on the grounds (among others) that the petition failed to state facts sufficient to constitute a cause of action. The trial court sustained the demurrer, to which ruling plaintiff excepted."

Thereafter defendant in error, by brief filed, calls attention to the record of the trial court wherein rule 11 of this court is violated by a failure to number the pages thereof, nor are the pages of the transcript of the journal numbered, violating the requirements of rule 12 of this court, and other errors on the face of the record.

Attention is also called to the fact that no judgment or final order has been rendered from which this appeal is taken under the provisions of our statutes, and cites the ruling of this court in Menardi v. O'Malley, 3 Wyo. 327, 23 P. 68; Gramm v. Fisher, 3 Wyo. 595; Kahn v. Traders' Ins. Co., 4 Wyo. 419, 34 P. 1059; Gramm v. Fisher, 4 Wyo. 1, 31 P. 767. Sec. 4249 (formerly 3128) of our statutes is as follows: "A judgment rendered or final order made by the District Court may be reversed, vacated or modified by the Supreme Court for errors appearing on the record."

In Menardi v. O'Malley supra this court made use of the following language: "The record presents nothing upon which this court can act. Judgment was not rendered for the defendant upon the sustaining of the demurrer, and no final order within the meaning of Section 3128 of the Code of Civil Procedure appears to have been made. The order sustaining the demurrer did not in effect determine the action and prevent a judgment." Thereafter plaintiff in error filed a brief on motion to dismiss appeal. As there was no motion to dismiss appeal, the brief was intended no doubt as a reply brief, and it was from this brief that the statement of the case supra was obtained, and for the first time attempted by plaintiff in error,...