Barnett v. Darrah , 17 Wyo. 476 ( 1909 )

Beard, Justice.

This action was brought by the defendant in error, Dar-rah, against the plaintiff in error, Barnett, in justice’s court. A trial was had before the justice resulting in a judgment in favor of Barnett for costs, and Darrah appealed to the district court where judgment was rendered in his favor and against Barnett. From which judgment plaintiff in error brings error.

The transcript of the justice’s docket as certified to the district court, so far as it contains any reference to any pleadings by the parties, is as follows: “Be it remembered that on this 18 day of Dec., 1906, W. H. Darrah brings suit against F. C. Barnett by summons for the recovery of money only, to-wit: $173.45/100,” and on the day of the trial the following: “Now on this day appeared both of the parties to the action. The defendant makes oral.” The statute governing pleadings in justice’s court provides, that such pleadings may be either oral or in writing at the election of the parties; if oral, the substance of them must be entered by the justice in his docket; if'in writing, they must be filed in his office, and reference to them made in his docket. (R. S. 1899, Sec. 4341.) Prior to 1895, new pleadings were allowed to be filed in the district court on appeals from justice’s court; but by Sec. 5, Ch. 57, S. L. 3:895 — Sec. 4401, R. S. 1899 — it was provided that “The case shall be tried de novo and the trial shall be had upon the pleadings and issues filed and made in the court appealed from.”

In the case at bar we find among the papers a petition bearing the title of this case; but it is not referred to in the transcript of the justice’s docket, is not marked filed by the justice, is not attached to the transcript, or in any manner identified or certified by the justice as a paper in the case. That being the condition, as presented by the record, there was no pleading on the part of the plaintiff upon which the defendant could raise an issue either of law or fact. The plaintiff in error moved the district court to dismiss the appeal for the reason that the transcript and return of the justice presented no issue to be tried. The motion was denied, and that ruling is assigned as error. We think the motion should have been sustained. The case of Walton v. Spinner, 15 Wyo. 297, is decisive of that question. It is contended, however, that this case differs from the Walton-Spinner case because the record was by order of the district court amended by interlining in the transcript after the words “the defendant makes oral/’ the following words: “plea of general issue and payment”; and that as so amended an issue of fact is shown to have been presented in justice’s court. On the other hand it is contended that the district court was without authority to so amend the record and that any amendment thereto must be made by the justice. The statute, Sec. 4402, R. S. 1899, provides that “The district court may, at its discretion, allow amendments to the record or to any pleading filed, in the furtherance of justice.” This provision gives the district court the authority to allow an amendment to the record; but Sec. 4411 provides how such amendment shall be made, viz.: “Whenever, the court is satisfied that the return of the justice is substantially erroneous or defective, the court may, by rule and attachment, compel him to amend the same.” Construing these provisions together it would seem that when the district court is satisfied that the return of the justice is substantially erroneous or defective it may not only allow, but may compel him to amend his record so that it shall speak the truth, and to so certify it to the district court. If the justice has omitted anything from the docket that the law requires him to enter he may amend it according to the facts; but we can see no more reason for allowing, the district court to insert a material statement in the transcript of the justice than there would be for this court to amend, in like manner, a transcript certified to it from the district court. (State v. O’Brien, 35 Mont. 482; 10 A. & E. Annotated Cases 1006.) It clearly appearing from the transcript of the justice that he had failed to enter upon his docket the pleadings filed or made by the parties, disclosing the issues presented, he should have been required, upon proper application therefor, to amend his record according to the facts and to so certify them to the district court, where the case would stand for trial de novo upon the pleading and issues filed and made in justice’s court. But, whether the amendment was properly made or not, the transcript as so amended failed to disclose any issue for the reason already stated, that it fails to show any pleading by the plaintiff below upon which an issue could be raised.

The judgment of the district court is reversed and the cause remanded for further proceedings according to law.

Reversed.

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