Slane v. Curtis , 41 Wyo. 402 ( 1930 )

ON PETITION FOR REHEARING A petition for a rehearing has been filed herein by the defendant Curtis. It is claimed that the court erred in not sending the case back for a new trial instead of entering a final judgment modifying that rendered in the court below, and it seems to be the contention that this court has no power to make such modification. Section 6371, Wyo. C.S. 1920, however, gives that express power, and it is very generally exercised by the appellate courts of the country, particularly after several trials, as in the case at bar. 4 C.J. 1149, 1150, 1157, 1192. A contention similar to that now made was made in the petition for rehearing in the case of Snowball v. Maney Bros. Co., 39 Wyo. 84,106, 270 P. 167, 271 P. 875, 61 A.L.R. 199, but the contention was overruled.

Counsel for the plaintiff requested the court, at the trial of the case, to make findings of facts as to the value of the property removed from the premises in question. That request was objected to on the part of the counsel for the defendant Curtis. They now complain that the District Court erred in not making such findings, and ask that the case be sent back for a new trial for that reason. The defendant made no request for any special findings and did not assign the failure to do so as error. If it is permissible in any case for a party to take advantage of the noncompliance of a court with a request of an opponent, it ought not to be permissible under the circumstances here. Moreover, the court made findings of fact as to the value of the property removed except as to the wiring. They are imperfect, it is true, but this court has held that, in order to be available as a ground for reversal, the imperfection in the findings should have been called to the attention of the trial court in order that it might have had an opportunity to make any necessary corrections. Hilliard v. Oil Fields, 20 Wyo. 201,122 P. 626; Sewall v. McGovern, 29 Wyo. 62, 211 P. 96. This the defendant failed to do. Moreover, the whole record was brought here for review. It discloses what the minimum amount of judgment against the defendant should have been, and the imperfections in the findings could not alter that fact, and would offer no reason for sending the case back for a new trial instead of modifying it in this court. See Hilliard v. Oil Fields, supra. We are inclined to believe, as indicated in the original opinion, that if any prejudice resulted from our action in modifying the judgment instead of sending it back for a new trial, it was to the plaintiff and not to the defendant. We find no reason for a rehearing and the same must accordingly be denied.

Rehearing Denied.

KIMBALL and RINER, JJ., concur.