Greenawalt v. Natrona Improvement Co.

92 P. 1008, 16 Wyo. 226, 1907 Wyo. LEXIS 47

Opinion

Scott, Justice.

This action was commenced in the district court of Na-trona County by Greenawalt, one of the plaintiffs in error, as plaintiff, against the Natrona Improvement Company et al., defendants in error, as defendants, to foreclose a mechanics’ lien. After the arnended petition, answer and reply had been filed, Hufman was permitted to file his petition of intervention. Thereafter a demurrer to Huf-man’s petition was filed, argued and submitted, and the court sustained the demurrer, to which ruling Hufman excepted; and no further or amended pleading was filed by him nor was the ruling upon the demurrer followed by any judgment against him. At the time set the case was regularly called for trial and upon motion the court gave judgment for the defendants and against Greenawalt upon the pleading-s. Greenawalt and Hufman bring- error.

i. The defendants in error have filed a motion to dismiss the proceedings in error on the grounds, first, that the pages of the record have not been numbered in accordance with the requirements of the rules of this court; and, second, that the statement of the points and authorities relied upon in plaintiffs in error’s brief does not refer specifically to the page and portion of the record where the question under discussion arises.

This court has held that a failure to comply with these rules is not ground for dismissal in the first instance. (Harden v. Card, 14 Wyo., 479 (85 Pac., 246.) In that case it is said: “The rules provide that the court may, of its own motion, or upon motion of the defendant in error, enter an order requiring that. the papers be properly arranged, or the pages numbered within a specified time, and that for a failure to comply with such order the cause may be dismissed in the discretion of the court.” No such order has been made in this case, and it necessarily follows that the motion must be and is hereby denied.

2. Both Greenawalt and Hufman are designated in the title of the petition in error as plaintiffs in error. The petition was filed in this court on April 6, 1907. Its opening words are, “Plaintiffs in error say that at the January, 1907, term of the district court, Second judicial district, in and for Natrona County, the State of Wyoming, on the 26th day of February, A. D. 1907, being one of the regular days of said January, 1907, term of said district court, said defendants in error recovered a judgment by the consideration of said court, against said plaintiffs in error, in an action wherein J. L,. P. Greenawalt and A. S. Hufman were plaintiffs and the Natrona Improvement Company and Boney Earnest et al. were defendants, a transcript of the docket, and journal entries whereof, is filed herewith, as made and provided by the statute in such case.

“The said plaintiffs in error claim that there is manifest error in the records and proceedings of said court filed herewith and made a part hereof, to-wit:” and then follows the various assignments of error. Neither in the title nor body of the judgment does Hufman’s name appear. The judgment complained of is against Greenawalt alone and in favor of the defendants, and Hufman is not a party thereto. The petition in error and the assignments of error are joint, and prosecuted and made jointly by Greenawalt and Hufman, and the prayer is for joint relief.

Hufman’s appearance in the case was as interventor, and his right to be heard must on the record be based solely on the order of the court sustaining the demurrer to his petition. Such an order is neither a judgment nor a final order within the provisions of our statute from which an appeal will lie, and it has been so held by this court in Menardi v. O’Malley, 3 Wyo., 327, and Turner v. Hamilton, 10 Wyo., 177. Had he filed a separate petition in error and served his assignments he would, under these decisions, have had no standing in this court and his petition would in such case have to be dismissed. Greenawalt having joined with Hufman in prosecuting joint assignments of error, the question is presented as to whether the assignments so made entitle him to have them reviewed in this court. With reference to a joint motion for a new trial this court announced the rule in North Platte Milling Co. v. Price, 4 Wyo., 293-306, as follows: “The motion for a new' trial is a joint motion of both plaintiffs in error. It is clear that the overruling of the motion was right as to the North Platte Milling and Elevator Company * * *. Whatever the law might be as to the Wyoming- National Bank on a separate motion for a new trial, the joint'motion was properly overruled.” In Hogan v. Peterson, 8 Wyo., 549-564, this court said: “It is difficult to comprehend upon what theory any verdict was rendered against Hogan and Chandler. * * * Had they presented a separate motion for a new trial, they would have been entitled to the vacation of the judgment against them. * * * Eor the reasons above set forth Mr. Eourt (one of the defendants) was not entitled to a new trial. The motion for a new trial being properly overruled as to him, and the motion being a joint one of all the plaintiffs in error, it must be held to have been properly overruled as to the others also.” This rule applies with like force and effect to a joint assignment of error. In Gordon v. Little, 41 Neb., 250 (59 N. W., 783), the court say: “A joint assignment of error not good as to all who joined therein will be held bad as to all.” That court said in Curtis v. Osborne, 60 Neb., 708 (89 N. W., 420): “Halsted and his. grantee, Curtis, have joined in the prosecution of a petition in error. Halsted is not in a position to claim error only on the theory that the judgment effects some of his substantial rights as a mortgagee or as a purchaser at the judicial sale made in the foreclosure proceedings. As we have seen, he is not in a position to complain, having purchased the property subject to the judgment lien; and it thus appearing that the record is without error as to him, the petition in error cannot be sustained as to both plaintiffs and, therefore, must be overruled as to both.” As already stated, no judgment was rendered against Hufman on the demurrer and there was nothing from which he could appeal. In Board of Commissioners v. Fraser, 19 Ind. App., 520 (49 N. E., 42), the appellate court of Indiana say: “The demurrer of Smith having been sustained, and judgment rendered against the board of commissioners alone, Smith was not harmed by the action of the court. There is no error of which he could complain or from which he could appeal. The assignments being joint, and not being good as to one of the appellants, must fail as to all.” It is said at page 1003. in 2 Cyc., that, “It is an elementary and well settled rule that joint assignments of error must be good as to all who join therein or they will not be available as to any of them. If the assignment of error is not good as to one, it will be overruled as to all. This doctrine has been applied in a host of decisions and under widely varying circumstances.” Many cases showing when, how and under what circumstances the question has arisen are cited in support of the text, among which are the following: Davis v. Williams, 121 Ala., 542 (25 So., 704); Brachtendorf v. Kehm, 72 Ill. App., 228; Advance Mfg. Co. v. Auch, 25 Ind. App., 687 (58 N. E., 1062); Sparklin v. St. James Church, 119 Ind., 535 (22 N. E., 8); Moseman v. State, 59 Neb., 629 (81 N. W., 853); Kittel v. Callahan, 19 N. Y. Suppl., 397 (46 N. Y. St., 404). See 3 Cent. Dig., tit. “Appeal and Error,” 2985, et seq.; also 2 Ency. Pl. & Pr., 933, and cases cited in the foot notes. The rule rests upon the principle that it would be manifestly unjust to disturb the rights of some of the parties which have been correctly determined, on the application of one whose rights are separate, distinct and severable therefrom. A party’s individual rights may be preserved upon a several or upon a joint assignment of error, but if the error be jointly assigned the relief, if any, is also joint, and if each party joining in the assignment is not entitled to the relief the assignment will be overruled.

As we have seen, Hufman could not successfully predicate error upon the ruling of the court alone in sustaining the demurrer to his petition, and Greenawalt having cast in his lot with Hufman, the petition in error cannot be sustained as to both plaintiffs in error.

It follows that the judgment must be, and it is hereby, affirmed. Affirmed.

Potter, C. J., and Beard, J., concur.