Opinion
No. 1667
February 10, 1931
ORIGINAL proceeding in mandamus by the State, on the relation of Barney N. Tibbals, against the District Court of the Ninth Judicial District in and for Fremont County and another.
For the relator there was a brief by John J. Spriggs, of Lander, Wyoming, in support of the motion for judgment on the pleadings.
The case has already been determined by the decision of this court overruling respondents demurrer to the petition. Respondent has since answered and relator now moves for judgment on the pleadings. The only point involved is whether respondent has offered a valid defense in his answer. The answer admits that plaintiff moved the court below to dismiss while the case was pending, which motion was denied. Counsel for respondents, in their relation to the controversy involving the property here in suit, appear to represent conflicting interests, which is not permissible. Hogan v. Thrasher, 233 P. 607. The writ of mandamus should issue without delay. Relator should not be compelled to stand by, restrained from securing the fruits of his judgment in another case, while labor liens of $18,000.00 have been run up and incurred since the restraining order was issued and the property foreclosed under these liens. Respondent court has failed to state a defense. On the record, relator is entitled to judgment on the pleadings, with provisions for his costs, expenses, attorney fees and damages.
No briefs were filed for respondent other than briefs filed by O.N. Gibson, of Riverton, Wyoming, and A.H. Maxwell, of Lander, Wyoming, which were considered at the former hearing.
In considering the petition when challenged by demurrer, we held ( 42 Wyo. 214, 292 P. 897) the alleged facts sufficient to show relator was entitled on his own motion to dismiss without prejudice his action, No. 4212, pending in the District Court of Fremont County, and that, on the District Court's refusal to permit the dismissal, relator was entitled to relief by writ of mandamus requiring the dismissal of that action and the resulting vacation of an order restraining the execution of a judgment in another action, No. 4182, in the same court.
Since the overruling of the demurrer, an answer has been filed, and plaintiff moves for judgment on the pleadings, contending that the answer contains no denial of material facts which are alleged in the petition and show, as held in our former decision, that relator is entitled to the writ.
The contention must be sustained and the motion granted. The petition alleges facts showing that relator moved to dismiss without prejudice his action No. 4212, at a time when under Section 5879, C.S. 1920, he had that right. The petition contains allegations of some unnecessary details as to what took place at the time relator moved to dismiss. The answer alleges as to the same matter some details inconsistent with those stated in the petition. But it seems clear that the defendant does not intend to deny, and in fact admits, that the motion to dismiss was made before the defendant in the action below had pleaded any set-off or counter-claim which, under Section 5880, would have prevented the dismissal of the action.
The motion for judgment on the pleadings will be granted and the writ for the purpose indicated in the last paragraph of our former opinion will issue. 292 P. 897, 901.
Motion Sustained.