| U.S. Circuit Court for the District of Nevada | Nov 27, 1893
(orally.) Complainants move the court for a new trial; among other things, upon the ground that the case was an action- at law, and not a suit in equity, and should have been tried by a jury. Complainants’ position relative to the character of this suit is, to say the least, very inconsistent. It seems to be: (1) That, if they had won, it would have been an equity suit, and they would have been entitled to a decree; but, having lost the case upon its merits, it is an action at law, and they are entitled to a trial by jury. (2) The court had jurisdiction to enter a decree in their favor, but it had no jurisdiction to enter a decree in favor of the defendant. (3) If they had won, they would have won everything; but, having lost, they have lost nothing. It is admitted that the bill was filed under the belief that equity was the proper remedy; but counsel for complainants claims that he was mistaken as to the proper form of the action.. The bill prayed for equitable relief as follows:
“That said defendant be required to appear and answer this complaint, and show to the court its pretended title, interest, and estate, and that upon the final hearing your orators be adjudged and decreed to be the owners of said Peerless mining claim and location, and that defendant’s claim thereto be adjudged and decreed to be invalid, and that defendant be perpetually enjoined from claiming or asserting any title, interest, or estate in and to said Peerless mining claim and location.”
The defendant answered, asserting title to the property, fully setting up its adverse claim, and prayed for affirmative relief, as follows: -
“This defendant further humbly prays that this defendant be adjudged and decreed to be the owner of said West Justice mining claim, and of said James G-. Blaine mining claim, as hereinbefore described, and that complainanis’ claim to said portions thereof hereinbefore described be adjudged and decreed to be invalid, and that said complainants be perpetually enjoined from claiming or asserting any title, interest, or estate in or to said West Justice mining claim and location, or in or to said James G-. Blaine mining claim and location, or any part thereof, and that an injunction be issued from this honorable court, enjoining and restraining said complainants, or either of them, their, or either of their, agents, attorneys, or employes, from working or digging in or upon either of said mining claims and premises, and from extracting and digging or carrying away any of the rock, earth, or ore in either of said mining claims, or from interfering in any manner therewith, and, upon the final hearing, that said injunctions be made perpetual.”
When issue was joined, complainants moved for the appointment of an examiner to take testimony in the case, and an examiner was so appointed by consent of the parties to this suit. The testimony was taken before the examiner, and submitted to the court. The case was tried before the court, and decided, as an equity suit, without objection being made by either party as to' the form of the action.
“It will be noticed that section 738 of the Oode of Civil Procedure, which provides for the determination of adverse claims to realty, is very broad in its terms, and includes all adverse interests, from a claim of a title in fee to the smallest leasehold; and, unquestionably, it is the duty of the defendant to set out his interest, whatever it may be, when called upon, under this section of the Oode. If he has an adverse claim which will support an issue at law, upon which he desires a jury trial, it is his duty to set out that claim, make that issue, and. demand a jury trial. In this action it is not necessary to determine whether or not the pleadings were sufficient to entitle either party to a jury as to any of the issues created. If not sufficient, the defendant should have made them so, if his adverse claims of interest justified such a course; and, not having done so, lie cannot now be heard to complain that he was deprived of his right to a jury trial.”,
In Levi v. Evans, where the suit was first brought as an action at law, upon common counts for money had and received, additional pleadings were filed in the state court, without objection, stating the grounds for equitable relief. The cause was thereafter removed to the United States circuit court, and was tried as an equity suit, without objection. The circuit court of appeals said:
“If additional and amended pleadings, exhibiting causes of action of an equitable nature, could not properly be filed in an action at law, all objection to such course of procedure was expressly waived by the appellant, and he voluntarily appeared to these equitable suits, pursuant to a stipulation entered into by him with the appellees for a valuable consideration. Good faith and fair dealing would now preclude the appellant from profiting by his objection. But, if there had been no waiver, the objection came too late. If a defendant in a suit in equity answers and submits to the jurisdiction of the court, it is too late for him to object that the plaintiff has a plain and adequate remedy at law.”
“If an application to frame issues for a jury would have heen granted, if seasonably made, the plaintiff waived her right by allowing a reference to a master, and a hearing before him, before asking for a jury trial. Parker v. Nickerson, 137 Mass. 487" court="Mass." date_filed="1884-09-05" href="https://app.midpage.ai/document/parker-v-nickerson-6421390?utm_source=webapp" opinion_id="6421390">137 Mass. 487. It would be unreasonable to permit a party to go to trial before a master, and take his chances of a favorable report, and then, if dissatisfied with the result, have another trial before a jury, and thereby put the other party to unnecessary expense and trouble.”
This view of the case is absolutely conclusive of the question. But, owing to the positions assumed by complainants, it is deemed proper to add that, in my opinion, counsel for complainants was not mistaken as to the proper form of the action. It is an equity suit. The statutes of Nevada provide that:
“An action may be brought by any person in possession, by himself, or his tenant, of real property, against any person who claims • an estate or interest therein adverse to him, for the purpose of determining such adverse •claim, estate or interest.” Gen. St. Nev. § 3278.
.An action brought under this statute, by a party in possession, to quiet the title to a mining claim, is an equity suit, and may be tried and disposed of as such. Low v. Staples, 2 Nev. 209" court="Nev." date_filed="1866-07-01" href="https://app.midpage.ai/document/low-v-staples-6667715?utm_source=webapp" opinion_id="6667715">2 Nev. 209; Mining Co. v. Marsano, 10 Nev. 370" court="Nev." date_filed="1875-10-15" href="https://app.midpage.ai/document/scorpion-silver-mining-co-v-marsano-6668676?utm_source=webapp" opinion_id="6668676">10 Nev. 370; Landregan v. Peppin, supra; Balmear v. Otis, 4 Dill. 558" court="U.S. Cir. Ct." date_filed="1877-07-01" href="https://app.midpage.ai/document/balmear-v-otis-8129395?utm_source=webapp" opinion_id="8129395">4 Dill. 558; Clark v. Smith, 13 Pet. 195" court="SCOTUS" date_filed="1839-02-28" href="https://app.midpage.ai/document/clark-v-smith-86088?utm_source=webapp" opinion_id="86088">13 Pet. 195; Wickliffe v. Owings, 17 How. 48; Holland v. Challen, 110 U. S. 24, 3 Sup. Ct. 495; 1 Fost. Fed. Pr. § 7; 3 Pom. Eq. Jur. § 1396. Foster, in enumerating the state laws creating new rights which can be enforced by federal courts of equity, specifies one authorizing a person in possession of land to sustain a bill to determine and quiet the title to the same. In Balmear v. Otis, which was an action brought under the Iowa statuté to quiet title, the court said:
“A proceeding under the Iowa statute to quiet title, is, in its essence, an equity suit. In the federal courts, whether a particular case is one at law •or equity depends 'upon the case stated in the petition. If the case there made shows a mere contest of legal titles, and the defendant is in possession, the remedy is at law. If the plaintiff is in possession, -or if neither party is in possession, and the petition or bill shows that equitable relief is necessary or proper, the jurisdiction is in equity.”
But complainants claim that defendant, not having filed a cross bill, is not entitled to any affirmative relief. If this position was conceded to be correct, and applicable to the facts of this case, it would only result in a modification of the decree so as simply to dismiss the complainants’ bill, and enter judgment for defendant for its costs. The contention of counsel is that when the court came to the conclusion that complainants were not in the legal possession of the mining ground in controversy, and were mere trespassers thereon, their right of action could not be maintained, and the court should have dismissed the bill, and remitted the defendant to its right of action at law, by ejectment, to remove complainants from the premises, and that the court had no jurisdiction to render a decree in favor of defendant, as prayed for in its answer. In Chamberlain v. Marshall, 8 F. 398" court="U.S. Cir. Ct." date_filed="1881-08-15" href="https://app.midpage.ai/document/chamberlain-v-marshall-8122205?utm_source=webapp" opinion_id="8122205">8 Fed. 398, which is the principal case relied upon by complainants, it appeared from the bill itself that
Having regularly obtained jurisdiction of this case, under the pleadings, as an equity suit, it is the duty of this court to settle and determine the rights of the parties in accordance with the principles of equity and justice, although an action at law might have been sustained to settle and adjudicate their rights. Landregan v. Peppin, supra; 1 Daniell, Ch. Pr. 555; Hawes, Jur. § 67, and authorities there cited; Kilbourn v. Sunderland, 130 U.S. 505" court="SCOTUS" date_filed="1889-04-22" href="https://app.midpage.ai/document/kilbourn-v-sunderland-92494?utm_source=webapp" opinion_id="92494">130 U. S. 505, 9 Sup. Ct. 594; Brown v. Iron Co., 134 U. S. 535, 10 Sup. Ct. 604; Beecher v. Lewis, 84 Va. 632, 6 S.E. 367" court="Va." date_filed="1888-03-15" href="https://app.midpage.ai/document/beecher-v-lewis--bagby-6808062?utm_source=webapp" opinion_id="6808062">6 S. E. 367; Crump v. Ingersoll, 47 Minn. 181, 49 N. W.
“But the maxim, ‘He who seeks equity must do equity,’ is as appropriate to the conduct of the defendant as to that of the complainant; and it would he strange if a debtor, to destroy equality and accomplish partiality, cquld ignore its long acquiescence, and plead an unsubstantial technicality, to overthrow protracted, extensive, and costly proceedings carried on in reliance upon its consent. Surely, no such imperfection attends the administration of a court of equity. Good faith and early assertion of rights are as essential on the part of the defendant as of the complainant.”
After referring to the cases of Reynes v. Dumont, 130 U.S. 354" court="SCOTUS" date_filed="1889-04-15" href="https://app.midpage.ai/document/reynes-v-dumont-92482?utm_source=webapp" opinion_id="92482">130 U. S. 354, 9 Sup. Ct. 486; 1 Daniell, Ch. Pr. 555; Lewis v. Cocks, 23 Wall. 466" court="SCOTUS" date_filed="1874-12-14" href="https://app.midpage.ai/document/lewis-v-cocks-89125?utm_source=webapp" opinion_id="89125">23 Wall. 466; Oelricks v. Spain, 15 Wall. 211" court="SCOTUS" date_filed="1872-11-25" href="https://app.midpage.ai/document/oelrichs-v-spain-88604?utm_source=webapp" opinion_id="88604">15 Wall. 211,—the court said:
“The doctrine of these and similar cases is that the court, for its own protection, may prevent matters purely cognizable at law from being drawn into chancery at the pleasure of the parties interested; but it by no means follows, where the subject-matter, belongs to the class over which a court of equity has jurisdiction, and the objection that the complainant has an adequate remedy at law is not made until the hearing in the appellate tribunal, that the latter can exercise no discretion in the disposition of such objection. Under the circumstances of this case, it comes altogether too late, even though, if taken in limine, it might have been worthy of attention.”
In Beecher y. Lewis, which was an action to settle accounts growing out of a trust fund, the court said:
“Its jurisdiction having been thus rightly invoked and exercised, there was no reason’to turn the parties around to another forum, and to fresh litigation, to finally settle these same accounts between them, for, when a court of equity has once acquired jurisdiction of a cause upon equitable grounds, it may go on to complete, adjudication, even to establishing legal rights and granting legal remedies, which wotald otherwise be beyond the scope of its authority. * * * As was said by the lord keeper, afterwards Lord Chancellor Nottingham, speaking of this court, in Parker v. Dee, 2 Ch. Cas. 200, ‘And, when this court can determine the matter, it shaE not be a handmaid to the other courts, nor beget a suit to be ended elsewhere.’ ”
After enumerating several cases where this principle would be applicable, the court adds:
“And, in the last place, when neither of these principles appEes, there is great force in the ground of suppressing multipUeity of suits, constituting, as it does, a peculiar ground for the interference of a court of equity.”
In Crump v. Ingersoll, 47 Minn. 181, 49 N. W. 739, the court said:
“The issues presented and the relief sought were such as equity might take cognizance of, and the parties proceeded to try and submit the case upon the merits, but the court stopped short of complete relief; and defendants insist that their rights under the contract are not, and ought not to be, affected by the judgment. In other words, the controversy is stiE open and undetermined, notwithstanding the trial already had. It is urged, as respects this branch of the relief sought, that the plaintiffs have an adequate remedy at law; but why put the parties to a second trial, when the case has already been voluntarily submitted to the court without a jury,- and the facts found fuEy warranting the relief sought? The strict, technical rule ought not to be appEed in such cases, especially where, as I think was the case here, both parties treated the case as an equity case, and consented to its trial as such.”
Certain affidavits have been filed by complainants with reference to newly-discovered evidence, which it is claimed is material to the issues, and could not, with reasonable diligence, have been discovered and produced at the trial. These affidavits do' not state facts sufficient to authorize this court to grant a new trial, even if they could be considered by the court. But the fact is that they were not filed in time, and are not properly before the court. They should be stricken from the files.
The motion for a new trial is denied.