256 P. 339 | Wyo. | 1927
The plaintiff in error has filed a petition for a re-hearing. Our former opinion is reported
"But the Code does not authorize a demurrer. It has been already shown that the technical civil actions of the Code embrace only the old common law actions. The title vii [ch. 360, Wyo. C.S. 1920] of the Code, which authorizes demurrer, answer, reply, etc., is prefaced with the caption "Pleadings In Actions." The whole title, by its language, object and general scope is inapplicable to this case. And see section 376. [Sec. 5887, Wyo. C.S. 1920]. It can not apply to petitions in error. Nevin v. Smith, 2 Western Law Monthly, 465. If so, the absurd result would follow, that they must be sworn to, which is not the practice. Code, Sec. 106. [Sec. 5692, Wyo. C.S. 1920]. The analogies of the Code are against filing answer or demurrer in this case. Code, Sec. 301. [Sec. 5874, C.S. 1920]. If it were necessary to apply the sections regulating pleadings to this case, possibly it might be done; but there is no such necessity. A hearing must be had without any answer or demurrer. Code, Sec. 538. [Sec. 5929, Wyo. C.S. 1920]. The section which declares a failure to plead an admission, only applies to "civil actions" *429 proper. Sec. 127. [Sec. 5671, Wyo. C.S. 1920]. The court may, by rule, authorize pleadings; and this may be convenient, though not essential, in error cases, to admit a defense of the statute of limitations, or release of errors. Nash Pr. 692."
In other states it is held that no demurrer or answer is required to a petition in a statutory proceeding for the vacation of a judgment. Nord v. Marty,
We find many reported cases in which demurrers or answers to such petitions have been filed. This was so in at least two Wyoming cases. Bank of Chadron v. Anderson,
Rehearing Denied.
BURGESS, District Judge, concurs; TIDBALL, District Judge concurs in the result. *430