Johnston v. Little Horse Creek Irrigating Co.

33 P. 22, 4 Wyo. 164, 1893 Wyo. LEXIS 8

• Court: Wyoming Supreme Court
• Decided: May 19, 1893
• Status: Published

Opinion

Conaway, Justice.

The controversy in this cause is in reference to rights to the use of water in Little Horse Creek and its tributaries.

Plaintiffs in error and Lizzie Dane appealed jointly from a decision of the State Board, of Control establishing such rights, to the district court for Laramie county. Their joint appeal was dismissed. The order of the district court dismissing this appeal is attacked as erroneous by plaintiffs in error.

No excuse is shown for not joining Lizzie Dane as party plaintiff in the petition in error. If she declined to be a party plaintiff that fact should be shown. Unless it were also shown that her interest had been divested, it would seem that declining to be a party plaintiff she should be a party defendant.

In the absence of any showing, the failure to make her a party is fatal.

Independently of this, the record presents no question for review by this court. The record shows the order of dismissal, and that to the making of such order plaintiffs in error and Lizzie Dane excepted. Our statute provides that no particular form of exception is required, and that when the decision objected to is entered on the record and the grounds of objection appear in the entry, the exception may be taken by the party causing to be noted at the end of the entry that he excepts. Otherwise,, a bill of exceptions is necessary. In this case, the exception was noted at the end of the entry, but no grounds of objection appear in the entry; and there is no bill of exceptions.

Errors antecedent to the final order are alleged, but in no case do the grounds of exception appear in the entry or by bill of exception.

But it is only the final order that may be vacated, modified or reversed in this proceeding. In the absence of legal objection to the final order, legally reserved, the presumption is that such order is correct, and in that case antecedent errors are not prejudicial or material.

The judgment of the district court for Laramie county, dismissing the appeal of plaintiffs in error is therefore affirmed.

Hon. Gibson Clark, being of counsel in the district court, did not sit, and the remaining justices of this court called in to sit in bis place Hon. John W. Blake, Judge of the district court of the second judicial district.

GkoesbeoK, C. J., and Blase, J., concur.