
    HITSHEW v. DERN, ET AL.
    
    (No. 1380;
    November 18, 1927;
    261 Pac. 121)
    Costs — Neivolous Appeal — Penalty for. Attorney Pee.
    1. Where judgment in an action of ejeetment was not only supported by the evidence but was result of consent of all parties in open court, defendant’s appeal only from that part finding that the plaintiff was entitled to possession at commencement of the action and awarding of costs held frivolous and taken merely for the purpose of delay, warranting assessment of penalty for attorney’s fees as provided by Comp. St. 1920, § 6372.
    Appeal from District Court, Niobrara County; Cyeus O. Beown, Judge.
    Action by Oliver Hitshew against C. E. Dem and another. Judgment for plaintiff and defendants appeal.
    
      
      Edwin L. Brown, for appellants.
    Tbe Court erred in bolding tbat plaintiff was entitled to possession at tbe time tbe action was commenced. Plaintiff was not entitled to possession until be bad tendered to tbe Court and surrendered notes and other evidence showing discharge of defendants’ obligations. If tbe judgment, awarding plaintiff possession as of date of commencement of tbe action, should stand, it might constitute a claim for rents, issues and profits for tbe years 1924, 1925. The judgment should be reversed.
    
      Harold I. Bacheller, for respondent.
    There can be no appeal from a mere finding; 3 C. J. 600. Tbe judgment is tbe only one tbat could have been entered in tbe case, 7 Am. & Eng. Ann. Cas. 1124. Defendants without introducing testimony consented tbat judgment might be entered under certain circumstances; tbe only judgment tbat could be entered in an ejectment case such as this, would be a judgment tbat plaintiff was entitled to possession on tbe date of bis action, as alleged. Tbe indebtedness was paid by tbe plaintiff in accordance with the agreement of sale; there was nothing in tbe agreement requiring plaintiff to notify defendants that tbe indebtedness bad been paid. Tbe matter presented on this appeal is a moot question. 3 C. J. 357. Defendants do not question tbe relief given plaintiff by tbe lower court; if tbe judgment is reversed here, such reversal can merely be an order striking out tbe findings appealed from by defendants.
    
      Edwin L. Brown, in reply.
    Defendants did not agree in open court tbat a general judgment might be entered. Plaintiff failed to state a cause of action and tbe point was not waived, 5653 C. S. Respondent’s counsel stated, upon oral argument in this court, tbat be would then and there consent tbat tbe provision of tbe judgment for possession at tbe time suit was commenced, might be stricken out, but be now argues affirmance in general, also alleging that tbe judgment is res judicata on tbe question of damages for depriving plaintiff of possession during tbe years 1924, 1925.
    Before Blume, Chief Justice, PotteR, Justice, and Burgess, District Judge.
    
      
      See Headnote: (1) 15 C. J. p. 283 n. 21, 33.
    
   Burgess, District Judge.

This is an action of ejectment brought in Niobrara County by Oliver Hitshew against C. E. Dern and Ethel Dern for the recovery of the possession of certain lands situate therein. Upon the trial the plaintiff made out a prima facie case showing in him the right of possession, and rested. The defendants then sought to introduce certain evidence which upon objection was ruled out by the court. There then ensued colloquies between the attorney for the plaintiff and the attorney for the defendants and the court, the result of which was that the defendants consented to the entry of a judgment in favor of the plaintiff. Upon submission of the draft of judgment by the attorney for the plaintiff to the attorney for the defendants the latter approved it except to the finding therein contained that the plaintiff was entitled to possession of the premises on the date suit was commenced. The trial judge, however, signed the draft as drawn, and the defendants have appealed from and complain only of that part of the judgment finding that the plaintiff was entitled to possession at the commencement of the action, and awarding him his costs.

The judgment is not only supported by the evidence in the ease but was the result of the consent of all parties in open court. There is nothing in the record upon which the defendants could hope to modify the judgment in its award of costs to the plaintiff or in the finding that he was entitled to possession of the premises at the time suit was started. We are satisfied tbe appeal is frivolous, and was taken merely for tbe purpose of delay.

Suggestion is made by counsel for tbe defendants that tbe petition of plaintiff does not state facts sufficient to constitute a cause of action, but is without merit. Tbe judgment will be affirmed.

There will be taxed as a part of tbe costs of tbe case tbe sum of $50 to be paid by tbe appellants to tbe counsel of tbe respondent in accordance with Section 6372, Wyo. Compiled Statutes 1920.

Affirmed.

Blume, Cb. J., and Potter, Justice, concur.  