253 P. 858 | Wyo. | 1927
The plaintiff sued before a justice of the peace to recover on a promissory note for $147, signed by defendant, payable to H.W. Kingery, an agent for a life insurance company. The note was for the first premium on a policy of insurance for which the defendant had made application. The defendant admitted making the note, but claimed that it had been procured by false representation; that the policy of insurance for which the note was given had never been delivered, and that the plaintiff was not a holder in due course. The justice of the peace after a trial without a jury, rendered judgment that the plaintiff recover nothing, and that the costs taxed at $7.40 be paid by plaintiff. The plaintiff took the case to the district *196 court by proceeding in error. The district court found no error disclosed by the record, and affirmed the judgment of the justice court. Following Section 6393, Wyo. C.S. 1920, the judgment of the district court included a judgment against plaintiff for the costs in the district court, and awarded execution therefor, and for the "additional sum of $7.40, being the judgment for costs heretofore made and entered by the said justice of the peace in favor of defendant." From this judgment of the district court, the plaintiff appeals.
When the case came to the district court, a great many unnecessary things were done. After the defendant had unsuccessfully demurred to the petition in error and moved to dismiss the proceeding, the plaintiff obtained leave to amend its wrtiten pleading filed in the justice court, and the defendant filed several amended answers. Evidence was taken as though the case were ready for trial de novo. The plaintiff sued out a writ of attachment, and defendant's property was attached. All this, before it had been decided whether or not there was any error for which the judgment of the justice of the peace should be reversed. A proceeding in error in the district court for the purpose of reviewing the judgment of a justice of the peace, is not unlike the similar proceeding in this court to review a judgment of the district court. Unless the record brought up discloses some reversible error, the judgment of the lower court will be affirmed. An important difference is that in the district court, when the judgment of the justice of the peace is reversed, the case is retained for trial de novo, except in cases where the justice had no jurisdiction. C.S. 1920, Sec. 6394. Critchfield v. Robinson,
The judge of the district court seems to have had the foregoing principles in mind, and when, without first having decided that a new trial was proper, he listened to evidence on the issues that had been tried by the justice, it was probably understood that such evidence was not to be considered or acted on unless the judgment of the justice were reversed. This evidence, and the amendments in the district court of the pleadings on which the case had been tried in the justice court, must be disregarded by us as no doubt they were by the judge of the district court when he affirmed the judgment of the justice.
It is frequently alleged in the specifications of error that the court erred in "dismissing the appeal." There was no appeal pending in the district court. An appeal from a justice of the peace under chapter 409, C.S. 1920, is very different from a proceeding in error under chapter 390. The proceeding in error in the district court was not "dismissed." In order, therefore, to give any meaning to specifications of error that refer to the "dismissing of the appeal," we must assume that they refer to the judgment affirming the judgment of the justice.
The first specification of error is that the district court erred in "dismissing the appeal from the justice court" for the reason that, at a previous term, defendant's motion to dismiss had been denied. Obviously, this specification points to no error. The affirmance of the judgment was not at all inconsistent with the previous ruling refusing to dismiss the proceeding in error.
The second specification of error is that the defendant "filed his answer in said cause, submitting himself to the jurisdiction of the court, and waived all right therein to have said appeal dismissed." We suppose the "answer" *198 referred to is the amended answer filed in the district court. All the amended pleadings in the district court, if not unwarranted, were at least permature. The plaintiff was the first offender. We see no reason for holding that the defendant, by amending his answer, waived his right to an affirmance of the judgment of the justice.
The third specification alleges error in dismissing the appeal because the attachment issued out of the district court had not been disposed of. No authorities are cited. If the attachment was not finally settled by the affirmance of the judgment of the justice, it can be dismissed when the case goes back to the district court.
The fourth specification of error complains that the case was not retained for trial by the district court as in cases of appeal, and the seventh specification alleges error in refusing to consider and enter judgment on the evidence taken in the district court. These specifications are shown to be insufficient by what we have said above in explaining the procedure.
The fifth specification of error is that the allegations of the petition were sufficient to entitle the plaintiff to recover. The mere fact that plaintiff's petition was sufficient to entitle him to judgment, could be no ground for reversing a judgment in favor of a defendant who had answered the petition and contested the case.
The sixth specification of error is, in effect, that the plaintiff was entitled to judgment on the pleadings filed in the justice court. The plaintiff does not argue that the answer fails to state a defense of fraud or failure of consideration, but it seems to be claimed that the defendant admitted that the plaintiff was a holder in due course. The answer alleged, among other things, that the plaintiff "is not a holder of said note in due course;" that defendant "believes there has been nothing paid on said note to said H.W. Kingery, the payee;" and that "plaintiff is not a holder for a valuable consideration without *199
notice." The effect of these allegations is not discussed by plaintiff in his brief in this court. The answer was not attacked in the justice court by demurrer or motion. A reply was filed denying the allegations of the answer, including the allegations just quoted. Pleadings in a justice court are to be construed liberally. Strict formality and accuracy are not required, even in the plaintiff's statement of the cause of action. Garber v. Spray,
Some reliance seems to be placed on Section 6481, C.S. 1920, which provides:
"In all civil actions before justices of the peace, allegations of written instruments and endorsements thereon, * * * shall be taken as true unless such allegations shall be specifically denied by the affidavit of the party, his agent or attorney."
Under this section, it is claimed that the defendant admitted both the making and endorsement of the note, and, therefore, admitted that the plaintiff was a holder in due course. Neither the premise nor the conclusion can be granted. The petition did not allege that the note was endorsed, and the copy of the note set forth in the petition shows no endorsement. Even if the endorsement of the note had been alleged by plaintiff and admitted by defendant, it would not follow that the plaintiff was a holder in due course. There was no reason for holding that the plaintiff was entitled to judgment on the pleadings.
The eighth specification is that the court erred in entering judgment for all costs against the plaintiff, because he had already paid the costs in the justice court. The transcript of the docket of the justice shows an entry: "Costs fully paid by plaintiff." Assuming that this entry on the *200 docket is sufficient to show that the plaintiff has paid the sum of $7.40 for which judgment was rendered in the justice court, that fact would not require a reversal of the judgment of the district court. If the matter be called to the attention of the district court, the plaintiff can be protected either by correcting the judgment or by giving him credit for the amount paid to the justice of the peace.
The specifications of error, in addition to the eight specifications hereinbefore considered, contains a copy of a motion for a new trial filed with, and denied by, the justice of the peace. Section 6516, C.S. 1920, authorizes a justice of the peace to grant a new trial within seven days after entry of judgment, on the ground that "the verdict was obtained by fraud, partiality or undue means." Apparently, this section has no reference to cases like this, tried by the justice without a jury. State v. Smedes, 17 Ohio Dec. (14 Nisi Prius) 757. While we think we would be fully justified in failing to notice the errors that are attempted to be assigned by including this supposed motion for a new trial in the specifications of error, we prefer in this case to consider those errors that seem to have been presented to the district court, without deciding whether or not they have been properly assigned on this appeal.
Where issues of fact raised by the pleadings have been tried and decided by the justice, and all the evidence or all the evidence on the particular issue in question has not been brought into the record by bill of exceptions, the district court in a proceeding in error is bound to presume that there was sufficient evidence to support the judgment. Hudson Coal Co. v. Hauf,
When the trial in the justice court was concluded, on December 12, the justice stated that he would render judgment on December 17. On December 15 the plaintiff appeared and moved for leave to amend its petition to show "the endorsements which appear on the note." The motion was denied on the ground that judgment had been entered on December 13. Without the evidence, we cannot say that the justice did not have other good grounds for denying the motion. It does not appear that the plaintiff made any motion to amend before judgment was entered. The proposed amendment was not for the purpose of sustaining, but to defeat, the judgment. We take it that plaintiff concedes that the amendment could not be made after judgment. But it is contended that the justice of the peace deceived the plaintiff by rendering judgment on the 13th, after he had announced that it would not be rendered until the 17th, and that plaintiff's motion, on the 15th, was before the time when judgment should have been entered. The contention cannot be sustained. The statute (Sec. 6523, C.S. 1920) provides that the judgment "must be entered at either the close of trial or within twenty-four hours thereafter * * *." A judgment entered after the time fixed by statute would be at least irregular. We need not decide whether it would be void. See Nicholson v. Roberts, 6 Oh. Dec. 233, N.P. 43, and cases there cited. The duty of the justice to enter judgment within twenty-four hours after the trial was quite clear, and we cannot hold that the plaintiff was misled when the justice followed the statutory direction instead of delaying the entry of judgment until a time when he may have lost jurisdiction. We must not be understood as intimating that the refusal to permit the amendment would have been prejudicial error, even if the motion therefor had been made at the trial.
We are of opinion that the district court was right in affirming the judgment of the justice of the peace, and the judgment appealed from will be affirmed, with direction *202 that, if it be shown to the district court that the plaintiff has paid the sum of $7.40, mentioned in the judgment, the fact be made to appear either by a correction of the judgment or by a credit thereon.
Affirmed with Direction.
BLUME, Ch. J., and POTTER, J., concur.
