72 P. 956 | Idaho | 1903
This action was originally brought on July 17,1901, to quiet the title to certain placer mining ground. The defendant McNutt filed his answer disclaiming any interest whatever in said mining ground. The appellant corporation filed a general demurrer to the complaint, which was overruled by the court. The cause was thereafter removed to the •circuit court of the United States, and was thereafter remanded to the state court where the action was commenced.
On May 8, 1902, a supplemental complaint was filed to which a general and special demurrer were filed, both of which were overruled by the court. The defendant corporation refused to plead further, and the cause was heard upon the evidence introduced by plaintiffs, and judgment was entered in their 'favor as prayed for in the supplemental complaint.-
Two errors are assigned; the first of which is the court erred in permitting the plaintiffs to file their supplemental complaint, and the second is the court erred in overruling the demurrers to the original and supplemental complaint.
The facts are substantially as follows: The respondents brought this action to quiet the title to certain placer mining claims on the seventeenth day of July, 1901. On October 8, 1901, the defendant McNutt filed his disclaimer. On October 10, 1901, the trial court made an order removing this case, to tlie United States circuit court on the petition of the appellant corporation. On the sixteenth day of April, 1902, said circuit court remanded the case back to the state court. Thereafter the court overruled the demurrer to the complaint. On May 8, 1902, the respondents by leave of court filed a supplemental complaint reaffirming all of the allegations of the original complaint, and alleging that on the third day of July, 1902, and while this cause was pending in the circuit court of the United States, the appellant corporation had made application for a patent for the mining ground involved in this suit; that respondents had filed their adverse claim against the issuance
It will be seen from the foregoing facts that this suit was brought to quiet title in respondents to said mining claim. The' right to the possession and ownership of said claims were put in issue.
After the suit was brought the appellant corporation made' application for a patent to said mining ground and respondents filed' an adverse claim under the provisions of section 2326, Revised. Statutes of the United States. Said section provides,' inter alia, that it shall be the duty of the adverse claimant, in such cases, within thirty days after filing his claim to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession to the mining ground involved in the controversy.
As this suit was commenced before the application for a patent was made and prior to the filing of the adverse claim,; it is contended that it cannot be turned into a suit in support' of an adverse claim under the provisions of said section 2326.
: Morrison, in his work on Mining Rights, tenth edition, page 424, says: “When a suit is already pending between the same, parties for the recovery of the ground in conflict at the time of filing the adverse, it has been ruled that such suit may stand as the suit to support the adverse, and no new suit need be brought. (8 L. D. 427, 28 L. D. 194.) In such case the plaintiff cannot dismiss so as to leave the adverse without a suit supporting it. (Axiom Co. v. Little, 6 S. Dak. 438, 61 N. W. 441.) In such instances there should he an amendment to the pleadings to show the relationship of the suit to the application.”
■ In'. the ease at bar the relationship of this suit to the ap-r plication for patent is shown by the supplemental complaint
. We áre in full accord with the rulé laid down in the above-cited authorities, as it would be a useless act to bring a second
Under the second assignment of error it is contended that the complaint and supplemental complaint do not state a cause of action, and it is contended that there is no allegation that the Pacific Dredging Company, appellant, is a corporation.
The allegation is as follows: “That the defendant, the Pacific Dredging Company, is a corporation, organized and existing by virtue of law and doing business in Lemhi county, Idaho." Counsel contend that said allegation is not a sufficient allegation of the incorporation of the Pacific Dredging Company, because it is not alleged under the laws of what state it was incorporated, and cite 5 Ency. of Pl. & Pr. 75; 6 Thompson on Corporations, sec. 7661; Miller v. Pine Min. Co., 3 Idaho, 493 (2 Idaho, 1206), and Brock et al. v. Northwestern Fuel Co., 130 U. S. 341, 9 Sup. Ct. Rep. 552, 32 L. ed. 905.
The authority first above cited, at page 70, groups the authorities under two heads, to wit: 1. Those holding that no averment is necessary; and 2. Those holding averment necessary. On page 71 it is said: “A large number of decisions bearing on this question are based on the ground that if a corporation sues or is sued by a name which imports a corporation, it is not necessary to aver corporate existence or to set out the act by which it was incorporated." And in note 4 on said page 71 numerous eases in which the name imported corporation are cited. It is stated in section 7661 of Thompson on Corporations, above cited, as follows: “But everything beyond the general fact of incorporation alleged in the declaration, necessary to maintain the action, is matter of evidence upon the trial."
In Miller v. Pine Min. Co., 3 Idaho, 493 (2 Idaho, 1206), 31 Pac. 803, this court held as follows: “In all cases when suit
The rule is different where the corporation is plaintiff. Defendant in such a case has a right to be informed 'by the complaint under the laws of what particular state or country it was incorporated.
In Stoddard v. Onondaga An. Conf. M. P. C., 12 Barb. 573, the court said: “Everything beyond the general fact of incorporation, alleged in-the declaration, necessary to maintain the action are matters of evidence upon the trial.....And besides, in this case the fact of the incorporation is supposed to be more particularly within the knowledge of the defendant, and in such cases less strictness in averments was always permitted.”
Brock v. Northwestern F. Co., supra, is not* in point, as the only question involved there was whether the allegation of defendant’s incorporation showed that it was a citizen of a different state from that of the plaintiff.
We conclude that said allegation under the facts of this ease is a sufficient allegation of the incorporation of appellant.
After an examination of the complaint and cross-complaint, we conclude that they each state a cause of action, and there was no error in the action of the court in overruling said demurrers.