Wyoming Supreme Court, 1934

Maunsell v. Yonkee

Wyoming Supreme Court · Decided March 13, 1934 · PER CURIAM.

30 P.2d 489; 47 Wyo. 28; 1934 Wyo. LEXIS 3 (Pacific Reporter, Second Series)

Counsel

The cause was submitted for plaintiff in error on the brief of Lonabaugh Lonabaugh of Sheridan. The deed of the homestead executed by Yonkee to his wife was null and void. 97-205, R.S. 1931; Croker v. Croker, 7 Fed. (2) 218; Simple v. Simple, 89 So. 638; Barto v. Kellogg, 124 N.E. 633; Loomis v. Loomis,; 13 R.C.L. Sec. 148, page 689. The court erred in allowing the widow $300.00 for tools, teams and implements, and $300.00 for library, instruments and implements of a professional man. Decedent was not shown to have been a professional man or a person engaged in business connected with the use of teams, tools, implements or stock in trade. For the defendant in error, the cause was submitted on the brief of C.A. Kutcher of Sheridan. Section 97-205, R.S. 1931 has no application to a deed of homestead property from a husband to his wife. The words, "sale" and "disposal," as used in the statute, contemplate a deed or mortgage to someone other than the wife as grantee — some third party. 29 C.J. 896; Burkett v. Burkett (Cal.) 20 P. 715 . The widow was entitled to a homestead allowance. 88-2904, R.S. 1931; 88-101, R.S. Decedent's right of occupancy of the homestead property during life was personal and terminated on his death. It was not property of his estate. Sec. 88-3003, R.S. 1931. The homestead contemplated by Section 88-2904 is tangible real property occupied as a home by the owner thereof. We concede that the widow is not entitled to two homesteads; but she is not getting two homesteads or two homestead exemptions out of the estate. If Yonkee was not the owner of a homestead at the time of his death, Mrs. Yonkee was entitled to the $2500.00 set over to her and also an allowance in lieu of exempt personal property. Questions not raised below by a preserved exception will not be noticed on appeal. 3 C.J. 689. But even if the point had been raised below, the order of the court is nevertheless correct. Sec. 88-2904 — 89-2990-2992, R.S. 1931. Opposing counsel appear to have confused the exemption statutes with the probate statute, which applies only to a deceased person, and his or her surviving spouse and children. Lonabaugh and Lonabaugh in reply. Even if the issues as to allowance in lieu of personal property had been raised by the pleadings, yet in view of the stipulation of the parties litigant, the rule is elementary that the appellate court will deem the pleadings to have been amended in accordance with the facts proved. C. N.W. Ry. v. Ott, 237 P. 238 ; Kuhn v. McKay, 7 Wyo. 42 ; C.B. Q.R.R. v. Pollack, 16 Wyo. 321 ; Quinlan v. Jones, 27 Wyo. 410 . The entire pleading will be examined in order to determine the matters involved. Bank of Chadron v. Anderson, 6 Wyo. 518 .

Opinion of the Court

*30 Per Curiam.

In this case, Vera Julia Maunsell seeks a review of an order made by the district court in a probate proceeding, by attempted proceedings in error. A so-called *31 abstract of record has been filed, briefs of the parties submitted, and the cause is before us for disposition on the merits. Very obviously, as the matter stands, we cannot thus give it consideration. Wyo. Rev. St. 1931, Sec. 89-4808, so far as necessary to be here referred to, reads:

“The plaintiff in error shall file with his petition in in error an application to the supreme court for an order directing the clerk of the district court or other tribunal from which the appeal is taken to transmit to the supreme court all such original papers in the case in which the appeal is taken, and a duly authenticated transcript of all such journal entries, or other entries of record as he may desire and as may be necessary to exhibit the error complained of;”

An examination of the files in this case brings to light a condition of affairs as follows: While the plaintiff in error filed with her petition in error a paper designated, “Application For Order For Original Papers and Copy of Journal Entries,” she expressly states therein that, “the said plaintiff in error hereby makes application for an order directing the Clerk of the said District Court to transmit to this Court the following named original papers in said case to-wit: none.” Additionally, no journal entries whatsoever are indicated as desired by her to be transmitted here. The consequence is that no record or order for review in the case is before us.

As long ago as O’Brien v. Clark, Adams, et al., 2 Wyo. 443, under the practice then prevalent, the Wyoming Territorial Supreme Court held, in a writ of error proceeding, that the party who sought the review of a judgment in that Court, must bring into it the record which he desired to have examined into, and that in event of failure to do this, the judgment would be affirmed as being prima facie correct, without an examination of the merits.

*32 Under our present practice in proceedings in error, it has been held that in order to give this court jurisdiction of the subject matter for the review of errors alleged, it is necessary for the plaintiff to comply with the statute above quoted. Ivan v. Jessup, 20 Wyo. 90, 121 Pac. 1001.

•As the cause now stands, therefore, there is no course left open to us but to direct that an order be entered dismissing it and that will be done.

Dismissed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.