Wolbol v. Steinhoff

• Decision Date: 01 November 1917
• Docket Number: 897
• Citation: 168 P. 251,25 Wyo. 227
• Parties: WOLBOL v. STEINHOFF, ET AL
• Court: Wyoming Supreme Court

168 P. 251

25 Wyo. 227

WOLBOL v. STEINHOFF, ET AL

No. 897

Supreme Court of Wyoming

November 1, 1917

25 Wyo. 227 at 258.

Original Opinion of November 1, 1917, Reported at: 25 Wyo. 227.

Rehearing denied.

BLYDENBURGH JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

ON PETITION FOR REHEARING.

BLYDENBURGH JUSTICE.

Counsel for defendant in error has filed an application for a rehearing in this case and assigned thirty-five reasons or alleged errors in the decision of this court, accompanied by an elaborate brief. There seems to be but two points alleged why a rehearing should be had, or the opinion handed down November 1, 1917, in this case withdrawn or modified, that were not fully gone into and presented in the original briefs, viz.: First, that the writer hereof had taken his seat as a member of this court since the hearing and decision, and should take part in the application for a rehearing; and, second, that a four-year period of limitation applies to the matters set up in the equitable defense of the answer under Section 4300, Wyoming Compiled Statutes, 1910 instead of a ten-year period under Sections 4295 and 4303, as held in the opinion.

A change of membership in the court is not in itself sufficient reason to grant a rehearing. (4 C. J. 625.) And counsel recognizes this in his brief. The writer not being present at the argument and presentation of this case, has read the pleadings, original briefs of the parties, and the brief filed on behalf of the defendant in error with the application for rehearing, and carefully gone over the entire voluminous record and can see no good reason for disagreeing with the conclusions stated in the exhaustive opinion by Chief Justice Potter in this case.

In regard to the statute of limitations, counsel for defendant in error seems to have changed his mind as to which statute applies since the submission of the case to this court on the hearing. His pleadings, as far as they apply to any statute of this state, states a ten-year period and in his original brief he relies only on Sections 4295 and 4303, Wyoming Compiled Statutes, 1910, as applicable, as is stated in the original opinion (168 P. 251 at 258). We believe counsel was right in his first idea that the ten-year period of limitation was the one that applied to the equitable defense plead in the answer and cross-petition, and that on the facts shown that period had not expired as held in the original opinion.

One other matter which was presented in the original brief is so emphasized in the brief for rehearing as to warrant mention and that is the contention that the judgment of the District Court of Albany County in the case of Laramie National Bank v. Steinhoff, rendered May 21, 1892, was void in toto, and did not protect the possession of Wolbol. This matter was disposed of and settled in the case of Laramie National Bank v. Steinhoff, 11 Wyo. 290, 312, 71 P. 992, adversely to counsel's contention, as stated in the opinion in this case, although the same counsel made the same contention in his brief on rehearing in that case (11 Wyo. p. 302); and in the opinion on rehearing, Judge Corn (11 Wyo. on page 312) said: "Counsel contends * * * * that, therefore, the judgment itself was void in toto and...