International Trust Co. v. Union Cattle Co.
cussing collateral security, at section 1 says: "But the customary use of the term to designate a pledge of incorporeal personal property seems now to be well established; and it is convenient to have a term to distinguish a pledge of such property from an ordinary pledge of chattels," etc. A debtor's own personal obligation is no part of his personal property or assets. The so-called collateral security in the case at bar is in the form of bonds of the debtor, but they are not secured in any manner. They are the mere obligations of the debtor, and there is no reason apparent for exempting them from the operation of the rule announced by Colebrooke. They do not constitute a lien upon the assets of the debtor, or upon any portion of them. *Collateral security imports a security in addition to the personal obligation of the borrower." Abbott's Law Dict., citing Shoemaker v. Bank, 2 Abb. (U. S.) 416. A debtor's liability to his creditor, where oth
er creditors are concerned, is not increased by increasing the number of his promises to pay the same debt, in whatever form he may make them. To hold otherwise would be to enable the debtor to incumber his assets by a new method, greatly to the prejudice of all other creditors. Third Nat. Bank v. Eastern R. Co., 122 Mass. 242; People v. Remington, (Sup.) 8 N. Y. Supp. 31, affirmed 121 N. Y. 675, 24 N. E. Rep. 1095. Cases cited to the contrary are either where there is a mortgage or other lien upon specific assets to be en. forced, or where the collateral paper has been transferred by the creditor and pledgee for value. The district court allowed plaintiffs in error dividends upon the actual indebtedness of the insolvent company to them. They were entitled to no more. Affirmed.
GROESBECK, C. J., and MERRELL, J., con.
ABATEMENT AND REVIVAL. | named in the statute, cannot be the subject of
an agister's lien.-Fein v. Wyoming Loan &
Trust Co., 331.
Death of plaintiff, substitution of grantee, see
"Ejectment," 1.
Pleas in abatement, see "Criminal Law," 3.
Of affidavit for appeal, see "Appeal," 12.
Of pleading, see "Pleading," 3.
Where plaintiff in ejectment, pending the ac-
tion, transfers her interest in the land, and then
dies, a motion by her assignee, on notice to de-
fendant alone, to be substituted as plaintiff,
should be denied for want of notice to the heirs
or devisees of the deceased plaintiff.-Smith v. See "Pleading," 2.
Harrington, 503; Same v. City of Cheyenne, 513.
Against firm, see "Partnership."
By counties, see "Counties," 4-6.
I. JURISDICTION.
II. PRACTICE.
III. REVIEW.
By indorsee on note, see "Negotiable Instru- IV. DECISION.
ments."
For negligence, see "Negligence."
On contracts, see "Contracts," 3.
Particular actions, see "Attachment;" "Eject-
To recover taxes paid, see "Taxation," 5-8.
To set aside conveyance, see "Fraudulent Con-
veyances," 3-5.
See, also, "Exceptions, Bill of;" "New Trial;"
"Report and Case Made."
In criminal cases, see "Criminal Law," 18-28;
"Homicide," 13, 14.
Appeal from finding in replevin.
1. A finding by the court, in replevin, that
plaintiff is entitled to possession of the goods
and one cent damages is not reviewable under
Code, § 3128, providing for the review of a “judg-
ment," defined by section 2657 as "the final de-
termination of the rights of the parties," and a
"final" order, which, under section 3126, is one
effect determines the action, and prevents a
"affecting a substantial right," and which "in
judgment."-Gramm v. Fisher, 595.
Assignment of errors.
2. An exception for irregularity which does
not point out the error complained of is too gen-
eral and indefinite.-Boburg v. Prahl, 325.
3. As errors occurring upon the trial, which
are properly grounds for a new trial, can only
be brought into the record by a motion for a
new trial, and must be included in the motion to
bring them to the attention of the supreme
court, it is not necessary to separately assign
v.3wyo.
They are sufficiently included
in the assignment that there was error in over-
ruling the motion for new trial.-Wolcott v.
Bachman, 335.
Briefs.
4. A rule of the supreme court providing
that, if briefs be not filed within a certain time,
the case may be dismissed, cannot be suspended
merely because a foreign attorney whose duty
it is to file the briefs is ignorant of the time and
allows it to go over, nor in any other instance,
unless, perhaps, a case of overwhelming neces-
sity; since under Sess. Laws 1890-91, c. 49,
such a rule becomes, when adopted, as binding
on the court, attorneys, and parties litigant
therein as if an enactment of the legislature.-
Cronkhite v. Bothwell, 739.
Failure to furnish abstract of record.
5. As by statute the rules of practice of the
supreme court are as binding upon the several
courts and the parties practicing therein as if
they were enactments by the legislative author-
ity, and as one of the rules requires the plaintiff
in error to furnish printed copies of an abstract
of the record, if the plaintiff in error fails to fur-
nish such abstract the judgment will be affirmed,
in the absence of an express understanding that
the case shall be heard and decided on its mer-
its.-Halleck v. Bresnahen, 73.
6. When plaintiff in error fails to file the ab-
stract of the record within the time prescribed
by rule of court, the case will be dismissed,
with costs. Trabing v. Meyer, 133; Collins v.
Johnson, Id.
7. Under rule 12 of the supreme court, which
provides that "appellant or plaintiff in error
shall deliver to the clerk of the court 14 printed
copies of an abstract of so much of the record
as is necessary," etc., a suit in chancery will be
dismissed for failure to file an abstract.-Spen-
cer v. McMaster, 105.
8. Rule 6 of the supreme court provides that,
where actions are dismissed in the district court
by reason of a demurrer to plaintiff's "petition"
being sustained, it shall be sufficient, in order to
carry the case up, to file a certified copy of the
record with the proofs. Held, that the rule did
not dispense with the necessity of filing ab-
stracts in suits in chancery, since such suits are
commenced by bills of complaint, and not by pe-
titions. Spencer v. McMaster, 105.
9. The statement in a bill of exceptions that
"the said testimony was all the testimony of-
fered by either party" does not show that all the
"evidence" is therein contained, so as to allow a
review thereof.-Wheaton v. Rampacker, 441.
10. Under Rev. St. § 2649, providing that
after the allowance and signing of a bill of ex-
ceptions "it shall be filed with the pleadings, as
a part of the record, but not spread at large
upon the journal," no entry of its allowance
and signing on the journal of the court below is
necessary to constitute the bill of exceptions a
part of the record. Saufley, J., dissenting.-
McBride v. Union Pac. Ry. Co., 183.
11. A motion for a change of venue, with the
affidavit supporting it, and a motion for a new
trial, are not pleadings, and can only become
part of the record by being incorporated into a
bill of exceptions, and this is not sufficiently
done when the bill simply recites the filing of
the motion and affidavit, and then states that
reference is made to them, and the same made
part thereof.-Perkins v. McDowell, 328.
Appeal from justice court-Amendment
of affidavit.
12. Code, § 2501, provides that the court may.
before or after judgment, in furtherance of jus-
tice, amend any proceeding by adding the name
of a party, or by correcting a mistake. Laws
1890, p. 55, § 7, provides that district courts
may allow amendments to the record. Held,
that where an affidavit for appeal from a jus-
tice's court had been sworn to, but by inadvert-
ence the signatures of the affiant and the officer
administering the oath were omitted, the dis-
trict court properly allowed the affidavit to be
amended by inserting such signatures.-Red-
man v. Union Pac. Ry. Co., 678.
when an important question arises before a dis-
13. Under Act March 9, 1888, providing that,
trict court, the judge may cause the same to be
cision, an order of the district court certifying
reserved and sent to the supreme court for de-
not stating what such question is, presents
that there is such a question in the cause, but
nothing for the supreme court to determine.—
Corey v. Corey, 210.
Objections not raised below.
14. In attachment, where defendant denies
the allegations of the affidavit, and has a trial
on that issue, he cannot complain for the first
time in the supreme court that the verification
of the affidavit was defective.-Roy v. Union
Mercantile Co., 417.
15. The objection that no notice of intention
to appeal to the district court was filed in the
justice court will not be considered by the su-
preme court, unless the question has first been
raised in the district court.-Redman v. Union
Pac. Ry. Co., 678.
16. Comp. Laws, § 306, is as follows: “A
new trial is a re-examination in the same court
of an issue of fact after a verdict by a jury, re-
port of a referee, or a decision by the court.
The former verdict, report, or decision shall be
vacated, and a new trial granted, on the appli-
cation of the party_aggrieved, for any of the
following causes affecting materially the sub-
stantial rights of such party:
Eighth.
Error of law occurring at the trial, and except-
ed to by the party making the application."
Held, that a motion for a new trial which pre
sents questions of law is not addressed to the
discretion of the court.-United States v. Trab-
ing, 144.
Necessity of motion for new trial.
17. The reviewing court will consider no mat-
ters which were not made the basis of a motion
for a new trial.-Wyoming Loan & Trust Co.
v. W. H. Holliday Co., 386.
18. Under Rev. St. §§ 2514, 2515, which de-
fine a trial as a judicial examination of issues
arising on pleadings, the action of a court in
hearing and determining a motion to discharge
an attachment is not a trial, and may be re-
viewed in error on the entire record, without a
motion for a new trial.-First Nat. Bank v.
Swan, 356.
19. Comp. Laws, pp. 71, 72, §§ 306, 308, 309,
provide that a new trial is a re-examination in
the same court of an issue of fact or a decision
by the court; that it shall be granted on the
application of the party aggrieved for causes
affecting materially the substantial rights of
such party, including an "error of law occur-
ring at the trial, and excepted to by the party
making the application;" that the application
must be made at the term the decision is ren-
dered, and within three days, unless unavoid-
ably prevented; and that the application must
be by motion, upon written grounds filed at the
time of making the motion. Sup. Ct. Rule 6
provides that no case will be heard in court
unless such motion has been made in the court
below, "in which all matters of error and ex-
ceptions have been presented," the motion over-
ruled, and exception taken thereto. Held, that
errors of law occurring at the trial cannot be
reviewed on appeal when not presented to the
trial court in a motion for new trial, and an ex-
ception reserved to the overruling thereof.
United States v. Trabing, 144.
quire into the weight of the evidence.-Boberg
v. Prahl, 325.
sufficiency of the evidence to support the verdict
23. An assignment of error based upon the in-
presents no question for review by a court of er-
rors.-United States v. Trabing, 144.
Conflicting evidence.
24. Where the evidence is conflicting the ver-
dict will not be disturbed on appeal.-O'Brien v.
Foglesong, 57.
25. Where the evidence is conflicting, and there
is evidence tending to support the findings, the
supreme court will not, on appeal, reverse the
decision of the trial court, unless the findings are
so clearly against the weight of evidence that it
is manifest that the evidence was entirely disre-
garded, or that the court was influenced by pas-
sion or prejudice, or acted from some improper
motive.-Ketchum v. Davis, 164.
26. In an action of replevin, a finding of the
lower court in favor of defendant will not be re-
versed on the ground that it is not supported by
the evidence, if the bill of sale on which plaintiff's
claim of title is based does not appear in the
record.-France v. First Nat. Bank, 187.
Showing as to evidence.
27. The sufficiency of the evidence to sustain
the finding will not be reviewed on appeal, where
the bill of exceptions only purports to contain
"all the testimony offered by either party."
Wyoming Loan & Trust Co. v. W. H. Holliday
Co., 386.
28. Where the bill of exceptions fails to state
that it contains all of the evidence, the court will
not review the ruling of the trial court upon a
motion for new trial on the ground that the judg-
ment is not sustained by the evidence.-Roy v.
Union Mercantile Co., 417.
Rulings on evidence.
29. Where ejectment is brought by a railroad
company for land claimed under certain grants,
Exceptions to ruling on motion for and the defendant fails to show, as is requisite,
new trial.
20. Merely asking time in which to prepare
bill of exceptions is insufficient to reserve an
exception to an order of the court overruling a
motion for a new trial.-United States v. Trab-
ing, 144.
21. An assignment of error based upon the
decision of the court in overruling a motion for
a new trial cannot be considered on appeal
when no exception to the decision was taken,
under Sup. Ct. Rule 6, which provides that no
case shall be heard unless a motion for a new
trial has been made and overruled, "and excep-
tion taken to the overruling of said motion."
United States v. Trabing, 144.
Weight and sufficiency of evidence.
22. Where there is testimony sufficient to sus-
tain the finding, the supreme court will not in-
V.3WYO.-28
that her right had attached prior to the location
of the road and the withdrawal of the land from
private entry, error occurring in the admission
or rejection of evidence on other questions in the
case cannot be held prejudicial.-Link v. Union
Pac. Ry. Co., 680.
30. Where a demurrer to the petition is sus-
tained, but no judgment for defendant entered
nor final order made, within the meaning of Code
Civil Proc. § 3128, which provides that a judg-
ment or final order made by the district court
may be reversed, vacated, or modified by the su-
preme court, and afterwards the case is stricken
from the docket on motion of plaintiff, the record
presents nothing on which the supreme court can
act.-Menardi v. Omalley, 327.
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