Garbanati v. Beckwith & Co.

2 Wyo. 213

• Court: Wyoming Supreme Court
• Decided: March 15, 1880
• Status: Published

Opinions

Sener, C. J.

The court is of opinion that there is no error in this case for it to review, reverse or modify, so far as the record shows.

From an inspection of the transcript of the record it appears that the defendants in the court below, the district court held in and for the county of Uinta, H. Garbanati and A. H. Davis were served with process on the 27th day of February, 1878, the petition to begin the action being filed that day in the clerk’s office of said court at the county seat of Uinta county, and process being served on said defendants in that county as the return therein shows. ’ The defendants should have answered or demurred by the 30th of March, 1878, which was the third Saturday after the return day of the summons: this they both neglected and failed to do.

Afterwards a demurrer was filed July 1st, 1878, by one of the defendants, H. Garbanati, the other defendant not appearing.

The record does not show affirmatively that it was filed by leave of the court; if such affirmatively shown leave were necessary, of which it is not necessary for the court here to consider, nor is it, in onr view, necessary in this case to consider tbe right of the court, under the statutes regulating the practice as to demurrers, to grant such leave at that time, nor the presumption or lack of presumption that such leave was given.

On the same day, July 1st, as appears from the transcript of proceedings brought here, and after H. Garbanati, one of the defendants, had filed a demurrer, the defendants, Gar-banati and Davis, were solemnly called three times into court and came not.

Again on the 5th of July, 1878, a trial was had in said court as by default, and a judgment rendered in favor of Beckwith & Co., the plaintiffs below, against the defendants Garbanati and Davis.

In this state of facts H. Garbanati, one of the defendants below, comes into court and seeks by proceedings in error to have the judgment of the court below reviewed, reversed or modified.

To our minds it seems that there is but one conclusion that can be reached, viz.: that the plaintiff in error here, II. Garbanati, had abandoned his demurrer in the court below, even if it ever was properly there, and that he and his co-defendant, Davis, if not consenting to a judgment there in that court against themselves, certainly, so far as this court is advised by the transcript of the record, did not oppose or object to the rendition.

They had due summons in this action and failed to make a proper defense or any defense at all, at the right time in that forum to which they were duly summoned; and in which, if they had a valid objection or defense to the action under the laws of this territory, they should have appeared seasonably and made them. And failing to do so in the court below when properly called, they, nor either of them, have any cause of complaint here which this court can or ought to consider.

Wherefore it seems to the court that the proceedings in error in this case should be dismissed, and the judgment of the court below affirmed with costs under the statute.

Judgment affirmed.