Clinton v. Elder , 40 Wyo. 350 ( 1929 )

ON PETITION FOR REHEARING A petition for a rehearing has been filed herein by the respondent, complaining that this court erroneously modified the judgment herein, by requiring the repayment of the assessments involved in this case. Counsel in the original brief argued, and they lay considerable stress in their brief for rehearing, upon the point that inasmuch as Dennis was a tenant of the respondent, he was bound to protect his landlord and could acquire the tax title only for the latter's benefit. However that may be — and we need not decide that point — a tenant is not required to make a gift to his landlord, and hence that rule, if correct, would in no event permit the landlord to profit at the expense of the tenant. The tenant, or his assignee, would at least be entitled to repayment of the amount expended, unless he had expressly agreed, as part of the consideration of the lease, to pay the taxes or assessments. Counsel argue that the record shows that Dennis so agreed. The witness Matzke, it is true, testified that Dennis leased the land, but that is not sufficient, and we cannot agree with counsel that the statements of the appellants in their pleading amount to an admission of such agreement, or that such agreement may be fairly inferred, especially in view of the denial of such agreement contained in the answer, which could not well be more specific. Hence the argument of counsel, advanced throughout the brief, that the judgment on the point here under consideration was good at least as to Dennis cannot be upheld.

Counsel argue further that the trial court erroneously excluded the testimony of the respondent and that we should so hold, and, therefore, consider it. While we do not say that we would not under some circumstances consider excluded testimony without cross-appeal or assignment of error, we do not think that we can do as requested in this case, if for no other reason than that we should not be called upon to determine the credibility of the testimony excluded, and this case is in that respect unlike that of Strever v. Sinclier, 66 Mont. 258, 213 P. 253. See 4 C.J. 679, Section 2581, for a general statement of the rule in like circumstances. We find nothing in Eads v. State, 17 Wyo. 490, 101 P. 946; Hilliard v. Douglas Oil Fields Co., 20 Wyo. 201, 122 P. 626, and Pardee v. Kuster, 15 Wyo. 368, 89 P. 572, 91 P. 836, that is inconsistent herewith. In view of our holding that in the absence of the excluded testimony there is not sufficient evidence to warrant the withholding of the repayment of such assessment, it is possible, though we do not decide the point, that, upon request, the case might have been sent back for a new trial. However, we could not well have adopted that course, since we were not asked to do so by counsel for respondent, but they, on the contrary, were anxious not to have the case tried anew, and asked us to modify the judgment instead, if we should deem modification necessary.

Counsel for respondent further argue that appellants cannot have any relief because they answered jointly, took exception to the judgment jointly, and have assigned error jointly; that either the one or the other has no interest in the case, and in the money directed to be repaid by this court; that accordingly the rule, relating to joint assignments and joint appeals, mentioned in Stein v. Schuneman, (Wyo.) 273 P. 543, and cases cited there, should be applied in this case. The point was argued on the original hearing, but we did not think the rule applicable, and the argument on petition for rehearing has not convinced us to the contrary. In order that an appellant should be cut off from relief by reason of the technical rule of procedure mentioned, it should be reasonably clear that the rule is applicable. But counsel for respondent themselves have thrown the greatest doubt on the point. The appellants were sued jointly, the petition in no way indicates that the interests of the appellants, then defendants, were other than joint, and a joint judgment was taken against them. Yet if one or the other of the appellants have now no interest in this appeal, or in the return of the money, as contended, that fact was as true when the petition was filed, and was as true during the whole course of the proceedings, as it is now, and nothing has taken place to change it. Again, counsel say that the defendant pleaded that Dennis paid the money to buy up the tax title, and that they did not produce any testimony that this money was, as further pleaded, repaid to Dennis by W.J. Elder; that the burden to show this was on the defendants, and counsel would apparently draw the conclusion that the record shows that Dennis is the only party that is interested in the return of the money — the only point left in the case. Conceding for the purposes of this opinion that the burden of proof was as contended, then the record shows that Dennis has some interest in having the assessment, paid for the benefit of the respondent, returned. But Elder holds the tax title, and we could not, under that state of the record, hold that Elder has no interest in it, however small that may be, and whether he received it as a gratuity or otherwise. In any event, the record is not at all clear to require us to apply the rule mentioned.

We see no reason for a rehearing, and the petition therefor must accordingly be denied.

Rehearing Denied.

KIMBALL and RINER, JJ., concur.