Shedd Ditch Co. v. Peterson

108 P. 72 | Wyo. | 1910

Beard, Justice.

This action was brought by the defendant in error, Joseph Peterson, as plaintiff, .against the Shedd Ditch Company, a corporation, Elijah H. Pitts, Lincoln Young, Edson A. Earle, Myra Earle, Robert H. Hall, Amelia S. Hall, Nellie R. Hall, F. J. Forbes and James Gillis, as defendants, to quiet the title in said plaintiff to a certain irrigation ditch known as the Shedd ditch. The defendants Lincoln Young and Elijah H. Pitts defaulted, and the other defendants filed a joint answer denying th.at plaintiff was the sole owner of said ditch and alleging that each of said answering defendants owned an interest therein. To which answer plaintiff filed a reply denying that either of said defendants had any interest in or title to said ditch. The cause was tried to the court, without a jury, resulting in a judgment in favor of plaintiff and against each and all of the defendants. A joint motion for a new trial was made by said answering defendants, which motion was denied, and they bring the case here on error.

It is contended by counsel for defendant in error, that as the motion for a new trial is a joint motion by all of said answering defendants, plaintiffs in error, and as the petition in error is also joint, and it clearly appearing that the motion for a new trial was properly denied as to some of said defendants, and as to them the judgment was right, the judgment must be affirmed. The motion for a new trial is clearly joint, not joint and several. The statement is, “Come now Shedd Ditch Company, Edson A. Earle, Myra'Earle, Robert H. Hall, Amelia S. Hall, Allie R. Hall, F. J. Forbes and Janies Gillis, the above named defendants, and move the court to set aside the judgment, decree, findings and orders of the court herein and grant a new trial in said cause upon the following grounds affecting substantially the rights of said parties.” The motion is signed by all of said parties by their attorneys, and the rulings and decisions complained of as grounds for a new trial are stated by the parties jointly and not severally. The trial court evidently regarded the motion as a joint one, there being nothing in the record to indicate the contrary, and is referred to in the order denying it as “the motion of defendants,” and the exception to the ruling is by “the defendants.” It clearly appearing on its face to be joint must be so considered here. It is clear upon the evidence and was practically conceded upon the trial that the Shedd Ditch Co. had no title to or interest in the ditch in controversy. As to it the motion for a new trial was, therefore, properly denied. It is also doubtful whether two other of the defendants were shown to have any right in the ditch, even if the correctness of the theory upon which the case was defended should be conceded. Under the settled rule in this state, the motion for a new'trial being a joint one of all the plaintiffs in error, and being properly denied as to one, must be held to have been properly denied as to all. It was said by this court in North Platte Milling and Elevator Co. et al. v. Price et al., 4 Wyo. 293-306, “The motion for a new trial is a joint motion of both plaintiffs in error. It is clear that the overruling of the motion was right as tO' the North Platte Milling and Elevator Company. * * * Whatever the law might be as to the Wyoming National Bank on a separate motion for a new trial, the joint motion was properly overruled.” And for that reason the judgment was affirmed. And in Hogan et al. v. Peterson, 8 Wyo. 549-564, the court said: “It is difficult, however, to comprehend upon what theory any verdict was rendered against Hogan and Chandler. * * * Had they presented a separate motion for a new trial, they would have been entitled to the vacation of the judgment against them. * * * For the reasons above set forth, Mr. Fourt was_ not entitled to a new trial. The motion for a new trial being properly overruled as to him, and the motion being a joint one of all the plaintiffs in error, it must be held to have been properly overruled as to the others also. (North Platte Milling Co. v. Price, 4 Wyo. 293.) The judgment will be affirmed.”

The questions presented by the record in the case at bar being only such as, by the statutes of the state and the rules of this court, must have been presented to the trial court by a motion for a new trial in order to have them reviewed here, the case comes clearly within the rule announced in the above cited cases. The rule is especially applicable to the case at bar for the reason that the defendants claim separate rights in the ditch in controversy. Following the rule established by those decisions the judgment of the District Court is affirmed.

Affirmed.

Potter, C. J., and Scott, J., concur.