117 F. 59 | 9th Cir. | 1902
The case of Kennedy J. Hanley, complainant, against Charles Sweeny, F. Lewis Clark, and the Empire State-Idaho Mining & Development Company, a corporation, defendants, was a suit in equity, brought in the circuit court of the United
The complainant having filed his replication to the answer of the defendants, the parties proceeded to take testimony upon the issues presented by the bill and answer, and upon a hearing the circuit court rendered its opinion on December 30, 1899, in which it was ordered that the prayer of the complainant be denied, and that defendants be dismissed, with their reasonable costs. The complainant thereupon brought the case to this court upon appeal. After a review of all the facts in the case, this court determined that the complainant was not entitled to any relief with respect to the claim that he was a purchaser of a one-third interest in the Skookum mine in the probate proceedings in the state court, but with respect to the one-eighth interest in that mine this court held that the deed conveying that interest to the defendants Clark and Sweeny was not by the terms of the agreement of the parties coupled with the Chemung mining stock; that it was improperly placed in escrow in the envelope containing that stock, and that the defendants had received it without consideration and in fraud of complainant’s rights. The judgment of the circuit court was therefore reversed, and the case remanded to the court below for further proceedings not inconsistent with the opinion of the appellate court. Hanley v. Sweeny, 48 C. C. A. 612, 109 Fed. 712. A petition for a rehearing' having been filed
It appears from the petition for a writ of mandamus filed by Hanley, the complainant in the court below, that the mandate of this court was presented to the circuit court on November 26, 1901, and filed therein and entered of record; that on November 29, 1901, an order was made -in the circuit court for the district of Idaho, directing the defendants to appear on December 23, 1901, and show cause why the court should not proceed in'accordance with the mandate of this court to grant an injunction and receiver, to refer the cause to a master for an accounting, and to grant other relief. It is alleged that the defendants appeared on that day in obedience to said order, and made the showing, and after the hearing the petitioner, by leave of the court, withdrew his motion for an injunction and receiver without prejudice to a renewal of said motion should the supreme court of the United States deny the petition of the defendants then pending for a writ of certiorari from the supreme court to review the decree of this court; and said circuit court then and there ordered the cause to proceed, and referred the same to the master in chancery to take an accounting of the ores extracted from the said Skookum mine and mining claim. It is alleged that on January 13, 1902, the supreme court denied the defendants’ application for a writ of certiorari. It is further alleged in the petition that on February 8, 1902, the petitioner, after giving due notice to the defendants, applied to the Honorable James H. Beatty, United States district judge of Idaho, acting as judge of the United States circuit court for Idaho, for an injunction to restrain the defendants from extracting ore from said Skookum mine to the exclusion of the petitioner, and for a receiver for said mine, and for an order permitting the petitioner to enter said property to the ore bodies therein, and for an execution to collect the costs of appeal. It is further alleged that the application for an injunction, receiver, and for order to enter, and for execution, was denied by said judge on February 11, 1902. It is alleged that on February 24, 1902, a time and place of hearing having been theretofore fixed, and notice thereof having been regularly given as directed by the order of reference, the parties appeared before said master in chancery for the purpose of faking an account of the ores extracted; that the petitioner filed with said master a statement of claim and charge in the form of a debit and credit account, showing that petitioner’s share of the ore extracted by defendants from said Skookum mine amounted to $315,000; that the defendant corporation filed an answer with said master in which it stated that it had extracted no ores from said Skookum mine subsequent
In answer to this petition Judge Beatty has made a return or answer, in which he suggests, among other things, that the orders complained of in the petition are in character judicial, involving the exercise of discretion and judgment, and not merely ministerial; that, if' he is in error in this position, the writ of mandamus is not the proper' remedy; that the cause was heard in the Northern division of the-district of Idaho, and since the mandate of this court was sent down' no term of the circuit court has been held in that division, and no judgment or action of any kind has been entered or taken in said
It is contended on behalf of the respondent that, so far as the original action relating to the one-eighth interest in the Skookum mine claimed by the complainant, Hanley, is concerned, it was merely an action to cancel the deed, and possessed none of the elements of a suit to quiet title; that this court held that said deed was wrongfully obtained, and should be canceled; and that the mandate was in accordance with this opinion. The suit was in equity. Its purpose was to determine a controversy concerning an interest in a mining claim containing valuable ore and for an accounting for the value of the ore that had been taken out of the mine by the defendants, and for an injunction prohibiting the defendants, their agents, servants, and employés, from in any wise working and extracting ore from said mine pending the trial of the case upon the merits and until the final determination of the rights of the parties thereto. The jurisdiction of the United States circuit court was invoked upon allegations of diverse citizenship in the parties to the action, and that the matter in dispute exceeded, exclusive of interest and costs, the sum or value of $2,000; that the amount in dispute did exceed $2,000 was shown by allegations that the premises in controversy were of the value of more than $10,000; that the ores contained in the said Skookum mine were of such value that there had been taken out of said ore body then disclosed in said ground up to the time of the commencement of the action ore of the value of not less than $150,000 net, over and above the cost of mining, treating, extracting, and marketing the same, of which, complainant was entitled to a share represented by his interest; and that the defendants gave out and asserted that they had millions of dollars’ worth of ore in sight in said Skookum claim. To show that the controversy was with respect to complainant’s interest in the mine and the ore it contained, he further alleged that said described property was of no value except for the ore it contained. Defendants in their answer admitted, that they
The allegation that the mine had no value except for the ore it contained did not bring the case within the jurisdiction of the court, if the only dispute was as to an interest in the surface location; and, if by reason of the allegations of the bill concerning the value of the ore in the mine the fact that the dispute related only to the surface location was overlooked, it was the duty of the court to dismiss the bill for want of jurisdiction when that fact was discovered. Section 5, Act March 3, 1875 (18 Stat. 470).
The case was heard and determined in the circuit court, not upon any question of the sufficiency of the pleadings, but upon the merits of the whole case, the decree of the court reciting that the court had found that the allegations of the bill had not been sustained by the evidence. Upon appeal this court also determined the controversy upon the merits of the whole case, and found that the evidence did sustain the allegations of the bill as to the one-eighth interest claimed by the complainant, and directed the court below to proceed and grant that relief which the complainant was entitled to have according to right and justice and the laws of the United States.
Section 4538 of the Revised Statutes of Idaho provides that “an action may be brought by any person against another who claims an estate or interest in real property adverse to him for the purpose of determining such adverse claim.” Under this statute the circuit court had jurisdiction upon the pleadings to determine the entire controversy between the parties respecting the Skookum mine and the ores therein contained. Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52; Reynolds v. Bank, 112 U. S. 405, 5 Sup. Ct. 213, 28 L. Ed. 733. It was the duty of the defendants to interpose all the defenses they had to the action, and, having failed to do so, the defendant the Empire State-Idaho Mining & Developing Company is debarred from interposing a defense which they had at that time by a new action. Burton v. Huma (C. C.) 37 Fed. 738. In Dowell v. Applegate, 152 U. S. 327, 345, 14 Sup. Ct. 611, 38 L. Ed. 463, the rule in such a case is stated to be: “A judgment estops not only as to every ground of recovery or defense actually presented in the action, but also as to any ground which might have been presented.”
Testimony on behalf of the defendants is referred to as tending to show that the apex of the vein containing the ore in the Skookum mine was outside the' surface location of that claim, and it is contended that, because counsel for the complainant objected to this testimony as irrelevant and immaterial, he must be.deemed as having
We are of the opinion that the petitioner is entitled to have the mandate of this court in Hanley against Sweeny et al. enforced, but, in view of the statement of the respondent that he will proceed to enforce it upon being advised as to the views of this court upon the questions that have been discussed in this opinion, we will withhold the writ of mandamus until the further order of the court.