McClintock v. Ayers , 36 Wyo. 132 ( 1927 )

ON PETITION FOR REHEARING. The respondents, William L. Ayers and U.S. Jones, have filed a petition for a rehearing. Our former opinion is reported 253 P. 658. The petition for a rehearing states five grounds. The first and fifth grounds, which may be considered together are:

"1. The petition filed in said cause and the evidence introduced on the part of the plaintiff and appellant show that plaintiff has no cause of action against these defendants or either of them, and that said petition not only fails to state a cause of action against either of said defendants but that it could not be amended so as to state a good cause of action against them or either of them in view of the facts developed in the evidence on the part of plaintiff. FIRST, for the reason that it appears without question that said alleged guaranty was only intended to cover accomodations and credit which might be extended to Platte County State Bank by said Citizens National Bank during the year 1921, and the evidence shows that none of said extensions of credit or accomodations were extended or granted during said year of 1921, and SECONDLY, for the further reason that the contract sued on in said cause is in contravention of the laws of the State of Wyoming respecting the conduct and regulation of state banks organized under the laws of said state and is therefore illegal and unenforceable."

"5. The record shows that the purpose and effect of the contract in suit was to circumvent the statutes limiting loans and indebtedness of banks and is, for that reason, void and unenforceable."

The contentions that the guaranty in question was illegal and void, and that it was intended to apply only to accomodations and credit extended during the year 1921 were urged as matters of defense in respondents' answer. The questions thus sought to be raised were disposed of as issues of law in the trial court by striking from the answer the allegations having reference to such defenses. Notwithstanding this ruling, to which respondents excepted, the judgment was in respondents' favor on the issue of conditional delivery of the written guaranty. The only assigned errors for our consideration on the appeal were those assigned by the appellant with reference to the issue that was submitted to the jury. The respondents, of course, were satisfied with the judgment of the trial court, and filed no cross-assignments of error. Exceptions by the respondents were not here for review. We may concede, however, that the whole record, including such exceptions, was available for the purpose of showing that errors assigned by appellant were not prejudicial. Pardee v. Kuster, (on petition for rehearing) 15 Wyo. 368, 382. The first and fifth grounds of the petition for rehearing may be re-stated thus: That the errors for which the case was reversed were not prejudicial to appellant (1) because it appears from the record that the guaranty in question was void or unenforceable, and (2) because it appears from the record that the said guaranty did not cover any of the transactions shown by the evidence. In respondents' brief filed on the former hearing we can find no suggestion that we should consider and pass upon the points now urged. It is needless to say that the appellant did not mention the matter. We do not hold that we might not on our own motion examine the whole record to see whether an appellant or plaintiff in error has been prejudiced by an erroneous ruling, but we cannot be expected always to do this. Where, as in this case, errors apparently prejudicial to the appellant have been committed in the trial of the one issue on which the case was decided, we are not likely to hold that the case should have been decided against the appellant on another issue that was disposed of in the trial court by striking the defense from the respondents' pleading.

We do not understand that respondents claim, even now, that the guaranty was void on its face. Nor do we understand that they claim the guaranty on its face did not cover the credits and accommodations extended. They offered by their answer to prove facts which they contended would show both the invalidity of the guaranty, and that it did not cover the transactions in question. Our attention is called to evidence admitted for other purposes which the respondents claim was sufficient to establish beyond question the allegations stricken from the answer. If the allegations of the answer had stood, a reply might have raised issues of fact that would have been tried. On those issues the appellant might have had evidence that is not now in the record. Without expressing any opinion on the action of the trial court in striking the mentioned allegations from the answer, and without the intention of casting a doubt on the correctness of that action, we cannot say that the record shows that the judgment should have been against the appellant on either of the issues attempted to be raised by the answer.

The other grounds of the petition for rehearing require no discussion. They refer to matters which we believe were sufficiently treated in our former opinion, and suggest nothing that causes us to doubt the correctness of our holding.

Rehearing Denied.

BLUME, Ch. J., and POTTER, J., concur.