McManus v. McGrath

126 P. 44 | Wyo. | 1912

Scott, Justice.

This action was commenced in the court below by the plaintiffs against the defendants- in error as defendants, to quiet title to a certain tract of land. Upon application the First National Bank of Lander was permitted to file its petition in intervention, which order during the trial was upon motion vacated and the petition in intervention was stricken from the files. The court found and rendered judgment in favor of the defendants-. A motion for a new trial was filed and overruled and plaintiffs bring the case here on error.

1. No assignment of error is here made other than as follows, viz: “That the court erred in overruling the motion of these plaintiffs in error joined with the First National Bank of Lander for a new trial.” From the record it appears that the' bank had no interest in the real estate involved. It held a cashier’s check for $280, drawn in favor of Robert A. McCoy, since the making of which said McCoy died, and the administrator of his estate, John L.. Davison, who appeared by intervention in this action, and Martin McGrath, one of the defendants, each claimed title to the check. Davison was also the guardian of the minor heirs of Robert A. McCoy and as such, during the trial and subsequent to the permission granted the bank to file its-petition of intervention, moved that such petition be stricken from the files. This motion was sustained, to which ruling the bank reserved an exception. The motion for a new trial is entitled as follows: “Asa McManus, Minea McManus, his' wife, and Ora L. Allen, plaintiffs, vs. Martin McGrath et al., defendants.” The following recital appears in the motion, to-wit: “Come now the plaintiffs, Asa McManus, Minea McManus, his wife, and Ora L. Allen, plaintiffs, and the First National Bank of Lander, petitioner by bill ■of interpleader, and move the court for a new trial of the above entitled cause for the following reasons, to-wit: 1. The court erred in vacating the order allowing the bill of interpleader of the First National Bank of Lander to be filed.” This motion was a joint and not a several motion. It is so regarded and treated by the plaintiffs in error in their petition in error. The striking of the bank’s petition of intervention affected the right of the bank and not the plaintiffs in error. The exception to overruling the motion for a new trial was jointly taken. If, therefore, the motion was properly overruled' as to the bank, the plaintiffs in error are bound by the ruling under the established rule of this court. The bank showed and claimed no interest, in the land title to which was being litigated by the other parties to the suit. In Ditch Co. v. Peterson, 18 Wyo. 402, 108 Pac. 72, there was a joint motion of all the plaintiffs in error for a new trial, which was properly denied as to one, and it was held that, because the motion was jointly made it was properly denied as to all. In that case the title to-a water right was involved, and one of the parties defendant joined -in a motion for. a. new trial and which party was shown to have no interest or title to the ditch in controversy. It was held that as the motion was properly overruled as to that party it was .properly overruled as to all. (North Platte Milling Co. v. Price, 4 Wyo. 293, 306, 33 Pac. 664; Hogan v. Peterson, 8 Wyo. 549, 564, 59 Pac. 162.) In principle, Greenawalt v. Imp. Co., 16 Wyo. 226, 92 Pac. 1008, follows the same rule. It is apparent that the bank having no. interest in the land which was the subject matter of the suit, the motion for a new trial, was properly overruled as to it (Ditch Co. v. Peterson, supra), and that being so, and the motion being jointly made, under the established rule of this court it will be deemed to have been properly overruled as to all. As there is no other assignment of error here made than overruling this motion, it follows from the foregoing that the judgment must be affirmed. . Affirmed. ,

Brard, C. J., and Pottrr, J., concur..