164 P. 840 | Wyo. | 1917
This case is here on error for the review of a judgment of the district court in and for Platte County affirming on petition in error the judgment of a justice of the peace. The action was commenced before the justice of the peace by the defendant in error, Verna Spray, the summons reciting that the plaintiff “sues on a civil action to recover the sum of two hundred dollars, same being for damages done to a crop of rye owned by plaintiff by reason of trespass thereon by defendant’s cattle.” ' Both parties appeared at the time specified in the summons, and the plaintiff thereupon filed a written petition alleging that she is and at all times during the year 1915 was the owner of a certain described tract of land in Platte County, and a one-half interest in a crop of rye growing thereon; that the defendant is the owner of a large number of range cattle; and that “on the 29th day of May, 1915, the defendant took down the wires and broke down the fence which enclosed the field in which said rye was growing and drove a large number of his cattle into said field of rye, and left said cattle for many hours in said field of rye to eat and graze on the same, and at many other times during the year of A. D. 1915 the said defendant took down the wires of said fence and tore down said fence and drove his cattle upon said field of rye and left them there to eat and graze on the same, until said field of rye was completely destroyed. That plaintiff’s one-half interest in said r.ye was worth the reasonable sum of two hundred dollars and upwards.” There was a prayer for judgment for two hundred dollars and costs. The plaintiff was represented at the trial
The points involved will be considered in the order in which they are discussed in the brief of plaintiff in error. The alleged defect of parties plaintiff does not seem to be relied on here, for it is not referred to in said brief, except in stating the questions presented in the justice’s court upon the motion to set aside the judgment and may, therefore, 'be treated' as waived. But the defect, if any, was waived by failure to make the objection at the proper time and in the proper manner. (Gilland v. U. P. Ry. Co., 6 Wyo. 185, 43 Pac. 508; 2 Waterman on Trespass, Sec. 461.)
But the petition would have been sufficient in an action brought in a higher court having jurisdiction, as against an objection made for the first time after verdict or judgment. The words “wrongfully and unlawfully” are used in a petition in an action for trespass in place of the common-law allegation “with force and arms.” (2 Kinkead’s Code PL, Sec. 1181.) The words “with force and arms” as formerly employed in pleading at common-law were the only words, except that it was against the peace, used to describe the act as wrongful or unlawful, aside from charging that the defendant broke and entered plaintiff’s pióse, and, in a case like this, the facts as to destroying the herbage. (Crosby v. Wadsworth, 6 East. 602, 102 Eng. Rep. Reprint, 1419; 1
In Chitty on Pleading, above cited, after stating that the only mode of taking advantage of the omission of the words “with force and arms” is by special demurrer, the author adds that in one case Lord Holt had said that the words might be omitted. And the words are omitted in the form for a declaration in trespass to land given in Chitty (16th Am. Ed., Vol. 2, pp. 615, 6.17) under the Common Law Procedure Act of 1852. By that act special demurrers were abolished, and only statements necessary to be proved were essential in pleading. The action of trespass at common-law was for an injury committed with violence either actual
The contention that the finding is insufficient to support the judgment is based, as we understand, upon the theory that the fact, as found by the justice, that the defendant’s cattle had damaged the plaintiff’s field of rye is not enough to establish the liability of the defendant for the alleged trespass; and it is argued that where there are special findings of facts, though not "requested by either party, there must be a finding of every essential fact to support the judgment or the findings will be'insufficient.
A much less degree of technicality and formality in the form of judgment as well as in other matters of procedure is required in justice courts than in courts of record. (1 Black on Judgments, Sec. 115; 1 Freeman on Judg. (4th Ed.), Sec. 53.) And a judgment of such a court is generally held sufficient without the formal statement of a finding, where it shows a determination of the cause upon the evidence, thereby indicating, upon a liberal construction, at least a general finding. Thus the following was held a valid entry of judgment in justice court: “After hearing the evidence
But it does not necessarily follow from the contention that the special finding aforesaid omits some facts necessary to establish defendant’s liability that such finding is insufficient upon the issues in the case and the evidence to support the judgment, even if it should be conceded that the rules as to special findings in courts of record are applicable with equal force to trials in justice courts, a question we do not decide. For all that the record discloses the only controverted point
This question has 'been considered without passing on the points suggested by counsel for defendant in error that no exception having been taken to the finding or judgment the plaintiff in error is not in a position to complain of the finding as defective or-insufficient, and that the exception to the overruling of the motion to set aside the judgment does not
The contention that the amount involved was beyond the jurisdiction of the justice, which is limited in civil actions by constitution and statute to cases where the amount in controversy, exclusive of. costs, does not exceed two hundred dollars, cannot be sustained. The plaintiff sued to recover the damage to her one-half interest in the crop of rye which was alleged to be $200, and thus within the justice’s jurisdiction. Defect of parties having been waived, she was entitled to recover, upon proper proof, the damage to her interest, and she was_ awarded the sum of $150. Having-sued only for the damage to her interest, we think the amount in controversy was the amount claimed, and within the jurisdiction of the justice court. The fact that the owner of the other half interest might sue and recover the damage to his interest does not, we think, affect the question.
We conclude, therefore, that the district court did not err in affirming the judgment of the justice of the peace, and that its said judgment must be affirmed. It will be so ordered.