Watts v. Lawrence
| Decision Date | 15 March 1920 |
| Docket Number | 959 |
| Parties | WATTS v. LAWRENCE |
| Court | Wyoming Supreme Court |
Original Opinion of December 18, 1919, Reported at: 26 Wyo. 367.
Rehearing denied.
ON PETITION FOR REHEARING.
This case was decided in an opinion handed down December 18, 1919 185 P. 719. A petition for a rehearing has been filed by counsel for plaintiff in error. The grounds upon which a rehearing is sought are on practically every point decided in the case; and the brief in support of the petition consists almost entirely of a re-argument of those questions. On the hearing of the case we were favored with an elaborate brief in which all of the grounds presented by the petition for a rehearing, with one or two exceptions, were fully discussed, and the case was also argued at length orally; and was given full consideration by the court. We think the correct rule on applications for rehearing is well stated, and supported by the authorities, in 18 Enc. P. & P. 36, as follows: "Where all the facts presented have in fact been duly considered by the court, and where the application presents no new facts, but simply reiterates the arguments made on the hearing, and is in effect an appeal to the court to review its decision on points and authorities already determined, a rehearing will be refused" (Brown v. Brown, 64 Mich. 82, 32 N.W. 663; Headley v. Challiss, 15 Kan. 602; Steele v. State, 33 Fla. 354, 14 So. 842; and other cases cited in note). However, a few points in the brief merit attention.
It is strenuously argued that the court was in error in its statement in the opinion that the statute of limitations not being raised in the court below, by demurrer or answer, was waived. And it is argued that by the former decisions of this court that when it appears on the face of the petition that the action is barred, the petition does not state facts sufficient to constitute a cause of action, and the question can, therefore, be raised at any time, even on appeal. The cases cited hold that when it does so appear upon the face of the petition, it does not state a cause of action and is subject to a general demurrer; but that is the extent to which those cases go, and do not decide that if the objection is not thus taken it is not waived. The point, however, was not necessary to a decision in the present case. The question in this case is, who owned the land at the time it was condemned by the city? Whoever owned it at that time is entitled to the condemnation money, and the fact that the defendant in error alleged in his petition that he was not only the owner at that time, but had been such owner for more than ten years prior thereto, and unnecessarily pleaded the source of his title, did not show that his action to determine his right to the money in the hands of the stakeholder was barred by the statute. If counsel's contention were true, then one who was the owner of the land condemned at the time of the condemnation, and had been the owner for more than ten years prior thereto, would be barred from asserting his right to the condemnation money because some one else wrongfully claimed to be the owner at the time of condemnation.
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