Walton v. Spinner
| Decision Date | 15 April 1907 |
| Citation | 15 Wyo. 297,89 P. 575 |
| Parties | WALTON v. SPINNER |
| Court | Wyoming Supreme Court |
Original Opinion of February 2, 1907, Reported at: 15 Wyo. 297.
Rehearing denied.
J. H Ryckman, for plaintiff in error on petition for rehearing.
The appellant having performed every duty imposed on him cannot be held responsible for an omission of the justice. (Goodrich v. Peterson, 12 Wyo. 214; Petty v Miller, 5 Tex. Cr., 208; Robison v. Medlock, 50 Ga. 599; Pearce v. Renfrow, 68 Ga. 194; Larcher v. Scott, 2 Ala. 40; Fisher v. Harber, 10 Iowa 293; 12 Pl. & Pr., 786.)
The writ of replevin shown by the transcript to have been issued was the plaintiff's pleading. If an answer or other pleading by defendant is not shown it is not plaintiff's fault. The transcript shows a jury trial, hence it is to be conclusively presumed that an issue was made up and tried, as it is always presumed that judicial proceedings are proper and regular until the contrary appears. (22 Ency. L., 1266.) On trial de novo errors and technical defects are to be disregarded, and they cannot deprive a party of a constitutional right. (12 Pl. & Pr., 814.) This case is distinguishable from Italian Swiss Co. v Bartagnolli, 9 Wyo. 204, where it appeared that there had been no issues.
ON PETITION FOR REHEARING.
This case was decided February 2, 1907, the opinion appearing in 88 P. 650. Plaintiff in error has filed a petition for rehearing in which it is now claimed that the transcript of the justice shows a pleading by the plaintiff, "because the transcript shows that the plaintiff in error caused a writ of replevin to issue from the justice court against the defendant." And it is contended that "this writ was his plea or petition or complaint." This is a departure from the position taken at the hearing; and we cannot agree with counsel that the writ is a pleading and can take the place of the pleadings required by the statute. The plaintiff must plead, and his first pleading, whether oral or in writing, consists of a statement of the facts constituting his cause of action; while the writ is the command of the court to the officer to whom it is directed. It is not the writ that the defendant is called upon to answer; but it is the cause of action as stated by the plaintiff in his pleading. As stated in the opinion, the transcript failed to show any pleading by the plaintiff, hence there was nothing upon which the defendant could raise an issue either of fact or...
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