10 Wyo. 177 | Wyo. | 1902
Attorney for plaintiff in error in his second'brief filed in this court makes the following statement of his case, which seems to be correct as far as it goes, and is as follows:
“This action was originally commenced by plaintiff in error filing her petition in the District Court. Defendant in error demurred to. the petition on the grounds (among others) that the petition failed to state facts sufficient to constitute a cause of action. The trial court sustained the demurrer, to which ruling plaintiff excepted.”
Thereafter defendant in error, by brief filed, calls attention to the record of the trial court wherein rule 11 of this court is violated by a failure to number the pages thereof, nor are the pages of the transcript of the journal numbered, violating the requirements of rule 12 of this court, and other errors on the face of the record.
Attention is also called to the fact that no judgment or final order has been rendered from which this appeal is taken under the provisions of our statutes, and cites the ruling of this court in Menardi v. O’Malley, 3 Wyo., 327; Gramm v.
In Menardi v. O’Malley supra this court made use of the following language: “The record presents nothing upon which this court-can act. Judgment was'not rendered for the defendant upon the sustaining of the demurrer, and no final order within the meaning of Section 3128 of the Code of Civil Procedure appears to have been made. The order sustaining the demurrer did not in effect determine the action and prevent a judgment.” Thereafter plaintiff in error filed a brief on motion to dismiss appeal. As there was no motion to dismiss appeal, the brief was intended no doubt as a reply brief, and it was from this brief that the statement of the case supra was obtained, and for the first time attempted by plaintiff in error, except as briefly referred to in a motion for speedy hearing. To avoid the claim made by defendant in error that this case falls within the construction of our law, as announced in the several cases referred to, that there must be a judgment or final order from which to appeal, neither of which appear in this case, attorney for plaintiff in error in his last brief says:
“Plaintiff in error is familiar with the rule of this court as laid down in the decisions referred to in defendant in error’s brief, but this is not a civil or equity case, but an election contest, a special proceeding, to which the cases defendant refers have no application, any more than they would in an insane case or probate ruling.”
A contentiqn that one appealing to-the’courts under the provisions of the probate code was not bound by the statutory requirements in civil actions was decided at the present term of this court in Ullman v. Abbott, 67 Pac., 469, and the reasoning in that case is broad enough to obviate the necessity of saying more upon the contention here made, as above set out.
