30 Nev. 391 | Nev. | 1908
Lead Opinion
By the Court,
This is an original proceeding in certiorari to review an order, made in the respondent court by the respondent judge, requiring the petitioner herein to pay into court the sum of $117,935.96, in the case of Florence-Goldfield Mining Company, a Corporation, Plaintiff, v. Little Florence Mining Company, a Corporation, Defendant.
At the time of the bringing of the action in the lower court the defendant corporation, Little Florence Mining Company, was the owner of a mining lease upon the property of the plaintiff corporation in the Goldfield Mining District. Plaintiff brought its suit against the defendant for the sum of $50,000 damages, because of the alleged violation of the terms of the lease. To this complaint the defendant filed an answer, denying all of plaintiff’s allegations of damages, and set up a cross-complaint, alleging: "That on the 11th day of April, 1908, and prior to the filing of the complaint in this action, the plaintiff had in its possession and under its control about the sum of $100,000 belonging to this defendant, as its proportion of the proceeds derived from the sale of ores extracted by the defendant from the premises included in the Little Florence lease, prior to said date, and which by
Before hearing upon this motion the plaintiff, by leave of court, filed an amended complaint, in which it was alleged that in violation of the terms of the lease the defendant had removed the ground underneath and within five feet of certain levels, and within ten feet of the main working shaft. The complaint further alleged: "* * * That the ground underneath said levels and around said working shaft so wrongfully removed by said defendant contains or did contain deposits of gold-bearing ore of great value, and the proceeds derived from the sale thereof was and is now the sole property of the plaintiff under the terms and conditions of said lease, and said defendant has no right, title, or interest therein or thereto; and plaintiff alleges that a considerable portion of the proceeds of the ore broken and raised from said premises by said defendant, which has come into the hands of the plaintiff and is now held by it, was derived from ore so wrongfully taken by said defendant from said ground. Plaintiff further alleges that under the terms and provisions of said lease said defendant was required to work said property in a thorough and workmanlike manner, looking to.the preservation and further development of. same as a workable mine; but plaintiff avers that said defendant has not so worked said property, but, on the contrary, has disregarded said provisions, and violated the terms of said lease or contract, and has worked and managed said mine and the various tunnels, drifts, shafts, or- excavations in such a reek-
By the terms of the lease, a copy of which was made a part of the complaint, it was provided that the lessee was " to not ship any ore, but to deliver all ore broken and raised from said mining property or premises to the lessor, the shipping ore to be sacked by and at the expense of the lessee, and all ore, whether shipping or milling ore, to be shipped or milled by and under the control and direction of the lessor, who, after deducting the expense thereof, shall render and pay to the lessees 80 per cent on $50 and under, and oh ore over $50 value, 75 per cent of the proceeds of the net smelter or mill returns thereof, less the reduction hereinafter provided for; the lessee retaining the balance of such proceeds. The net smelter or mill returns shall be the assay value of the ore returned by the mill or smelter, with deductions, less the cost of transporting the ore from the mine to the mill or smelter and the charge of milling or smelting the same. Said ore to be shipped or milled within a reasonable time after having been brought to the surface and prepared therefor, and all ore broken and raised and remaining undisposed of upon the determination of this lease, that cannot then be profitably smelted or milled, shall be and become the property of the lessor, unless the lessees within ten days from the date of said determination request the lessor, in writing, to have said ore smelted or milled.” Upon the hearing of the motion it was admitted by the plaintiff, petitioner herein, that it had in its possession the sum of $117,935.96, representing the amount of receipts from ore from defendant’s lease shipped by the plaintiff in accordance with the provisions of the lease, and which amount would have been the defendant’s portion of the proceeds, had all provisions of the lease been complied with.
Of the $117,935.96, which the plaintiff in the lower court admitted would be due the defendant from the proceeds of ore from the lease, providing the lessee had complied with the terms and conditions of the lease, a portion of it is claimed to be held to recoup the plaintiff for damages alleged to be due plaintiff for violating the terms of the lease as to the manner in which the leased premises should have been mined. Another portion of it is claimed to be the absolute property of the plaintiff, for the reason that it is alleged to be from ore which the defendant extracted from ground
If it were contended that all of this money was from the proceeds of ore, which ore yms itself the property of the plaintiff, because extracted from ground expressly reserved from the lease, the ease would be different; for then there would be no admission that any of this money was held by plaintiff as trustee for defendant. The allegation in plaintiff’s complaint in this regard is as follows: "Plaintiff alleges that a considerable portion of proceeds of the ore broken and raised from said premises by said defendant, which has come into the hands of the plaintiff and is now held by it, was derived from ore so wrongfully taken by said defendant from said ground;’ The allegation is very indefinite as to what amount is claimed to rightfully belong to plaintiff as the proceeds from ore taken from its ground; but as not all of it, nor any specific amount, is so claimed, there is, in effect, an admission that all of it, less some indefinite portion so held by plaintiff, belongs to defendant. This virtual admission was, we think, under the provisions of the statute quoted, sufficient to give the court jurisdiction to make the order sought by this proceeding to be annulled. (Daniell’s Chancery Pl. & Pr. p. 1779.) If there was any error in the
The court having jurisdiction to make an order in the premises, the writ is dismissed. Respondents are entitled to their costs.
Rehearing
On Petition for Rehearing.
By the Court,
The petition for a rehearing in this proceeding goes mainly to the question of error in the ruling of the court, rather than to the jurisdiction to make the order sought to be annulled on certiorari. We see no reason to change the views heretofore expressed upon the question of jurisdiction.
Counsel for petitioner urge that the position taken by this court in reference to the indefinite allegation in the complaint as to the ownership of ore extracted by the defendant from the leased premises is susceptible of a possible misconception by the lower court, and might be held to warrant the trial court in excluding evidence as to plaintiff’s ownership in the ore extracted, or justify it in refusing an amendment of plaintiff’s pleadings so as to make the allegation of ownership -definite. In advance of a ruling of the trial court admitting or excluding evidence, or granting or refusing an amendment to pleadings, this court would not presume to pass upon a question purely speculative. Courts are liberal in granting permission to amend pleadings, especially before the trial, and there is nothing in the opinion of this court, heretofore rendered in this cause, which we think could be construed as abridging the right of plaintiff, upon a proper showing, to apply to the court for leave to amend its pleadings, if it desired to do so.
The petition for a rehearing is denied.