Padlock Ranch v. Irr. Dist. , 50 Wyo. 253 ( 1936 )

ON PETITION FOR REHEARING Appellant has filed a petition for rehearing herein. It assigns as error that we held that the trial court obtained jurisdiction of the subject matter by the filing of the petition with a sufficient number of signers. We cited, in support of that statement, the case of North Laramie Land Co. v. Hoffman, 30 Wyo. 238,260, 219 P. 561, affirmed in 268 U.S. 276, 69 L. Ed. 953,45 Sup. Ct. 491. We fail to see the force of appellant's contention. Counsel argue that the proceeding should not be deemed to be "commenced" until after the giving of notice, just as in the case of an appeal. A concession of that point would not be important. Under our statute the filing of the petition gives the court jurisdiction to order a notice to be given. That evidently refers to jurisdiction of the subject matter, in the particular case, since jurisdiction over the parties is acquired otherwise. Counsel say that in the North Laramie Land Company case — a case for the establishment of a road — we stated that "it is a universal rule that where a petition is required to be filed in a cause, the filing of one that is sufficient legalnotice of the proceedings being given confers jurisdiction and sets in motion the power of the tribunal to hear and determine the cause." And counsel thinks that the words underscored distinguishes this case from that. Not at all. The statute in relation to the establishment of a road requires notice previous to the filing of the petition; yet we stated in the foregoing case that in a proceeding like this, which is a proceeding in rem, notice need not be given at the commencement of the proceeding. The statute in this case requires that the notice be given subsequent to the filing of the petition. We have defined jurisdiction as the power to render a particular judgment. State v. District Court, 33 Wyo. 281, 289,238 P. 545. A number of things are necessary to confer it in complete form. One is that the tribunal must have general power over matters of the kind involved in a particular case. That exists in the case at bar. The particular proceeding must, further, be initiated in some sufficient manner. That was done by the petition filed in this case, thus giving the court jurisdiction over the subject-matter in the particular case. To give the tribunal the power to hear and determine the cause, as stated in the North Laramie Land Co. case, something more, of course, is essential, namely, notice to the parties interested. That notice confers jurisdiction over the parties, and if it is insufficient, but they make a general appearance, the insufficiency is waived, as held in our original opinion. But merely because such notice, or appearance, is necessary to hear and determine the cause by no means indicates that the court did not have jurisdiction of the subject matter in the particular cause. In fact, as already indicated, our statute, by providing that the court shall order the notice to be given after the filing of the petition, necessarily presupposes, and seems to specially provide, that the court acquires jurisdiction of the subject matter in the particular case before notice is given.

2. We stated above that a proceeding of the kind involved herein must be initiated in some sufficient manner. There can be no doubt that this was done when the petition was filed in Cause No. 2067. The real complaint of counsel is, or must be construed to be, that the court thereafter lost the jurisdiction over the subject matter which it had previously acquired — lost it by reason of the fact that no notice was immediately given; because the petition was amended as to the name of the district; because the engineer's report became inadequate and because another irrigation district, within the boundaries of the Washakie Needles Irrigation district, was organized in the meantime. Nothing which counsel have said in the argument for a rehearing has convinced us that the trial court lost its jurisdiction once rightly acquired. As a general rule jurisdiction once acquired is not defeated by subsequent events. 15 C.J. 822-823. The matters complained of at most made the proceedings irregular. In that event the appellant would be entitled to relief in so far as prejudiced, but no further. We deemed the proceedings irregular in some respects, and therefore ordered a new trial in connection with those matters by reason of which the appellant was prejudiced.

3. Counsel further complain that we did not hold that appellant's land should have been excluded from the district. Our attention is called to the fact that opposing counsel are not adverse to such exclusion. If the opposing party is willing to have the lands of appellant excluded, that can be done by proceedings in the trial court, and all controversy can thereby be ended. But that is not a ground for rehearing herein. There was some evidence that at least some of appellant's lands would be benefitted, and if that is so, we, obviously, should not finally determine the question of the exclusion of appellant's land from the district now, since that can be determined much better later. If, of course, the court should, upon the further hearing of the case which we have ordered, determine that the project is not feasible so far as appellant is concerned, that itself would settle the point, nor is there anything in what we have heretofore said to hinder the trial court in such further hearing from reversing the order heretofore made as to the inclusion of appellant's land in the district. Appellant's counsel, however, seem to think that unless we review the order of inclusion now, the opposing party might claim the matter to be res judicata. It is apparent what we though of that point when we declined to finally determine the matter at this time. "A judgment cannot be set up in bar of a subsequent action unless it was a final judgment on the merits, adjudicating the rights in litigation in a conclusive and definite manner. In order that a judgment should be final within the meaning of the rule stated it must be such as puts an end to the particular litigation or definitely puts the case out of court." 34 C.J. 770. Clearly these principles are applicable here. The point in question has been specially reserved for future decision; it has not been adjudicated, but has been specially directed to be adjudicated in the future. In such event no plea of res judicata would avail, until that has been done.

4. Complaint is made in a supplemental petition for rehearing that our order heretofore made is indefinite, and that we should have made a definite order of reversal of the case and sent it back for a new trial. That point, however, is merely a matter of expediency. Unless the court, upon the further hearing of the case, should find that the project is feasible, so far as appellant is concerned, from the standpoint of cost, benefits to appellant, proportionate or absolute, and all other considerations, including the fact of the organization of a 3000-acre district mentioned in the original opinion, the court must necessarily vacate its order heretofore made in so far as the inclusion of the land of appellant in the district is concerned. It is suggested that this would, necessarily, affect all other parties. Perhaps so, indirectly. But other parties are not before us, and we fail to see how this court would have power to do anything further than make an order which affects the rights of the parties before us. Whether, if the project is not feasible so far as appellant is concerned, it is also not feasible so far as other parties are concerned, is a point not now before us, and we express no opinion thereon. The statute seems to contemplate that one does not necessarily follow from the other, for it has been given power to exclude lands at the time of the hearing on the establishment of the district. If, however, the court should conclude that the project is not feasible as to any of the land-owners, some means can doubtless be found to abandon it.

The petition and supplemental petition for a rehearing are, accordingly, denied. The order heretofore entered upon the journal will, however, be amended, so as to make reference to this opinion as well as the original opinion.

Rehearing denied.

RINER, Justice, and ILSLEY, District Judge, concur.

(October Term, 1936)