Walton v. Spinner
88 P. 650
Wyo.
1907
Check Treatment

Lead Opinion

Scott, Justice.

This is аn action in replevin and was originally commenced in a justice court in Uinta County by the plaintiff in error against the defendant in error. From a judgmeiit in favor of defendant the plaintiff appealed to the District Court and the case was placed upon the trial docket for the September, 1905, term of that court. The defendant moved to dismiss the appeal on the ground that the transcript and copy of the justice’s docket does not show that any issue was raised in the justice court. At thé same time the plaintiff made a motion for a rule upon the justice of the peace to complete his transcript. Upon the hearing, the latter motion was denied and the former motion was granted and the appeal was dismissed. Plaintiff аssigns as error the refusal to grant the rule upon the justice to complete the transcript and also the order dismissing the appeal.

1. Sectiоn 4399, R. S., relating to and prescribing the method of appeals from the judgment of a justice of the peace to the District Court, provides that the “justiсe shall make a certified copy of or transcript of all his docket entries and of'the bill of costs, and shall * * * transmit the same to the clerk of the District Court to which the áppeal is taken.” Section 4411, R. S., says, “Whenever the court is satisfied that the return of the justice is substantially erroneous or defеctive the court may by rule and attachment compel him to amend the same.” The plaintiff’s motion is under the last section and omitting the captiоn so much as ‍‌​​​​‌‌‌​‌‌​‌​‌​​​​‌​‌‌‌​‌‌​‌​‌​​‌‌‌​‌‌‌​‌​‌​​​​‍is material is as follows: “The defendant in this cause having this day, * * * filed his motion to dismiss the plaintiff’s appeal on the ground that the transcript and files of the case do not show the issue tried in the court below and do not show any issue to be tried in this court, now comes the plaintiff and without concеding or admitting that the reasons and grounds for said motion are true, moves the court for a rule upon the justice who tried said cause or his successor in office to appear in said court on the first day of April, 1906, term, to-wit, the 2d day of April, 1906, with his docket of said cause and to amend his return and *302transcriрt in said cause in accordance with the facts or show cause why the same should not be amended as provided by Section 4411 of the Revised Statutes.”

The motion was not supported by affidavits, nor was any showing made or attempted to be made to show what the facts were to which the amendment if made should conform. The District Court had the transcript before it, which was duly certified by the justice to be a correct copy of the docket entries, and there is nothing on the face of the transcript showing that the certificate is incorrect or that the record is incomplete or erroneous. There is no mention of an)'- pleadings either oral or in writing, nor were any pleadings returned with the transcript. If there were pleаdings in writing they should have been filed and returned with the papers in the case, and if oral, the substance should have been entered by the justice in his docket. (Sec. 4341, R. S. 1899.) Whether the issues were made up in either of these ways does not appear either by the transcript or among the papers rеturned or by any evidence offered by the plaintiff. Plaintiff in his motion does not concede or admit the grounds ‍‌​​​​‌‌‌​‌‌​‌​‌​​​​‌​‌‌‌​‌‌​‌​‌​​‌‌‌​‌‌‌​‌​‌​​​​‍and reasons of the motion to dismiss the aрpeal to be true, but he offered no evidence, and made no showing or denied that they were true. If the order issued, the plaintiff by the language оf- his motion showed that he was uncertain of results, and the use of the court’s powers was invoked to ascertain facts which the moving party was uncertain of and which it was his duty to have known and to make appear to the court by affidavit or other evidence before he was entitled to its аid. He should have been able to say and make it appear to the court that there was in fact an issue made by the pleadings in one of thе two ways provided by statute before he was in a position to ask that the rule issue. The trial court was not satisfied that the return of the justice was substantially erroneous or defective, which was a pre-requisite to granting the motion, and upon the record we are unable to understand how it could hаve been so satisfied or how its ruling could have been different. *303The order dismissing the appeal for the reason that there was no issue before the court for trial was authorized by the statutes regulating and prescribing the method of appeal from the judgments of justice courts, the constitutionality оf which has been passed upon and upheld by this court. (Clendenning v. Guise, 8 Wyo., 91.)

Section 4401, R. S., provides, “That cases appealed ‍‌​​​​‌‌‌​‌‌​‌​‌​​​​‌​‌‌‌​‌‌​‌​‌​​‌‌‌​‌‌‌​‌​‌​​​​‍from justice courts shall be tried de novo, and the trial shall be had upon the issues and pleadings as filed in the court appealed from.” The transcript and files returned by the justice failed to show any pleading either oral or written or what, if any, issue was tried before him. There was therefore no issue brought into the District Court by the appеal upon which trial de novo could be had. This statute was construed by this court in ‍‌​​​​‌‌‌​‌‌​‌​‌​​​​‌​‌‌‌​‌‌​‌​‌​​‌‌‌​‌‌‌​‌​‌​​​​‍Italian Swiss Agricultural Colony v. Bartagnolli et al., 9 Wyo., 204, where it was said: “We are of the opiniоn that as no issue was presented in the justice court by defendants in error, the District Court had no issue to hear and determine.” That was a case wherе the defendant neither appeared nor answered. Upon the facts it is somewhat different from the present case, where the defendant appeared and the plaintiff who is here complaining tendered no issue nor plead in any manner so that defendant could answer and thus rаise an issue. In principle, however, it is the same. The justice’s transcript and return failed to show any pleadings oral or written, and for that reason оn the appeal there was no issue for trial. The court properly dismissed the appeal. The judgment will be affirmed. Affirmed.

Potter, C. J., and Beard, J., concur.



Rehearing

on petition for rehearing.

Beard, Justice.

This case was decided Fеbruary 2, ‍‌​​​​‌‌‌​‌‌​‌​‌​​​​‌​‌‌‌​‌‌​‌​‌​​‌‌‌​‌‌‌​‌​‌​​​​‍1907, the opinion appearing in 88 Pac., 650. Plaintiff in error has filed a petition for rehearing in which it is now claimed that the *304transscript of the justice shows a pleading by the plaintiff, “because the transcript shows that the plaintiff in error caused a writ of replevin to issue from the justice court against the dеfendant.” And it is contended that “this writ was his plea or petition or complaint.” This is a departure from the position taken at the hearing; and we cannot agree with counsel that the writ is a pleading and can take the place of the pleadings required by the statute. The plaintiff must plead, аnd his first pleading, whether oral or in writing, consists of a statement of the facts constituting- his cause'of action; while the writ is the command of the court to the officer to whom it is directed. It is not the writ that the defendant is called upon to answer; but it is the cause of action as stated by the plaintiff in his pleading. As stated in the opinion, the transcript failed to show any pleading by the plaintiff, hence there was nothing upon which the defendant could raise an issue either of fact or law. The motion for a rule on the justice did not state, nor was there any evidence offered to show, that the transcript was erroneous or that the plaintiff in fact plead before the justice. We see no reason to change our opinion and a rehearing is denied. Rehearing denied.

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