Kavanaugh v. Flavin
88 P. 764
Mont.
1907
Check Treatment
MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The contentions made in this court are: “ (1) The court erred in sustaining the defendants’ motion for nonsuit; (2) the court erred in overruling plaintiff’s motion for a new trial; (3) the court erred in entering judgment and decree in favor of defendants and against the plaintiff.” As the second and third depend entirely upon the first, it is only necessary to determine the first contention in order to decide whether any reversible error was committed.

It is said that the motion for nonsuit is too general in its terms and should have been denied for that reason. While the propriety of interposing a motion for nonsuit in a suit in equity is a very doubtful one, still, if the result reached by the court was correct, this court would not be warranted in reversing the judgment because the particular motion upon which the court acted in reaching the result is entitled a motion for a nonsuit, whereas it should have been a motion to dismiss the plaintiff’s case, or for a decree in favor of the defendant.

While it is a general rule that a motion for a nonsuit must state precisely the grounds on which the moving party relies, so that the attention of the court and opposing counsel may be directed to the supposed defects in .the plaintiff’s case (Coffey v. Greenfield, 62 Cal. 602), still where the defense of laches is relied upon, as in this instance, and it appears that the plaintiff knew of the defendant’s adverse claim for twelve years before he invoked the aid of the court, and had every opportunity to explain the delay, but offered no explanation whatever,' but waited until the relative positions of the parties had been changed by the death of one of them, if the trial court on its own motion *137had dismissed the ease, we think it could not be said to have committed error.

The plaintiff sought the aid of a court in equity and is bound by the principles applicable to proceedings in equity. It is a familiar maxim that- equity aids the vigilant, or, as the same thing is expressed in our Civil Code (section 4618), “the law helps the vigilant, before those who sleep on their own rights.”

Good faith and reasonable diligence only can call into activity the powers of a court of equity, and, independently of the period fixed by the statute of limitations, stale demands will not be entertained or relief granted to one who has slept upon his rights. Considerations of public policy and the difficulty of doing justice between the parties are sufficient to warrant a court of equity in refusing to institute an investigation where the lapse of time in the assertion of the claim is such as to show inexcusable neglect on the part of the plaintiff, no matter how apparently just his claim may be; and this is particularly so where the relations of the parties have been materially altered in the meantime.

It appears that the plaintiff had notice in 1893 that the interest of the estate of Michael Kavanaugh, deceased, had been forfeited under the provisions of section 2324 of the United States Revised Statutes (U. S. Comp. Stats. 1901, p. 1427) ; that he took no action whatever for twelve years; that he did not know when application for patent was made, or when it was no longer necessary to continue the annual assessment work on the claim; that since patent issued the estate has not paid any taxes on the property, and, as a matter of fact, the plaintiff had never been on the claim since 1890. These facts themselves, in the absence of any explanation, show inexcusable delay, and, when coupled with the fact that the plaintiff delayed bringing this suit until after the death of Matthew Flavin, it would appear to be unconscionable now to permit him to attempt to prove fraud on the part of Matthew Flavin, when Flavin himself cannot be heard in his own defense. The lapse of twelve *138years unexplained, and the changed relations of the parties consequent upon the death of Matthew Flavin, cannot fail to give rise to an unanswerable presumption against the plaintiff’s claim.

Speaking upon the subject of laches, the supreme court of the United States, in Hammond v. Hopkins, 143 U. S. 224, 12 Sup. Ct. 418, 36 L. Ed. 134, said: “No rule of law is better settled than that a court of . equity will not aid a party whose application is destitute of conscience, good faith, and reasonable diligence, but will discourage stale demands, for the peace of society, by refusing to interfere where there have been gross laches in prosecuting rights, or where long acquiescence in the assertion of adverse rights has occurred. The rule is peculiarly applicable where the difficulty of doing entire justice arises through the death of the principal participants in the transactions complained of, or of the witness or witnesses, or by reason of the original transactions having become so obscured by time as toi render the ascertainment of the exact facts impossible. Each case must necessarily be governed by its own circumstances, since, though the lapse of a few years may be sufficient to defeat the action in one case, a longer period may be held requisite in another, dependent upon the situation of the parties, the extent of their knowledge or means of information, great changes in values, the want of probable grounds for the imputation of intentional fraud, the destruction of specific testimony, the absence of any reasonable impediment or hindrance to the assertion of the alleged rights, and the like. (Marsh v. Whitmore, 88 U. S. (21 Wall.) 178, 22 L. Ed. 482; Lansdale v. Smith, 106 U. S. 391, 1 Sup. Ct. 350, 27 L. Ed. 219; Norris v. Haggin, 136 U. S. 386, 10 Sup. Ct. 942, 34 L. Ed. 424; Mackall v. Casilear, 137 U. S. 556, 11 Sup. Ct. 178, 34 L. Ed. 776; Hanner v. Moulton, 138 U. S. 486, 11 Sup. Ct. 408, 34 L. Ed. 1032.) ”

The plaintiff had every opportunity to explain his unusual delay, if he could do so, but he offered no explanation whatever, and the presumption must be indulged that he had none. It must further be presumed that the plaintiff made out the best case that he could, and, irrespective of technical objections which *139might be urged to the interposition of a motion for nonsuit in a suit in equity or the general terms in which the motion was couched, since the district court clearly reached the correct conclusion, it would be idle to send the case back for another trial.

We are of the opinion that no reversible error was committed. The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Smith concur.