85 P. 721 | Ariz. | 1906
The appellants, who were the plaintiffs in the district court, brought this action to quiet title to a mining claim in the Warren mining district, called the “Bangor mine.” The defendant claimed the same mining location by virtue of a subsequent location thereof upon the assertion that the claim, as located by the plaintiffs, had become forfeited by reason of plaintiffs not having performed the annual assessment work thereon for the year 1902; there being no resumption of labor on said claim prior to the date of their location of the claim on the first day of May, 1903. The issue before the court was whether the annual assessment work for 1902 had been done prior to May 1, 1903. The defendant introduced several witnesses to show that the annual expenditure had not been done, and the plaintiffs introduced evidence in rebuttal to show that the annual expenditure, on said claim had been done by the owners thereof in November and December, 1902, and in January, 1903, and that full and sufficient annual expenditure had been made thereon before the first day oE May, 1903. As a part of the evidence of the plaintiffs, the witnesses Turner and Matko, who participated in the making of such annual expenditure and the doing of
It is apparent that, if this evidence was improperly admitted it was prejudicial to the plaintiffs. The plaintiffs, in attempting to prove the amount of the assessment work done by them and the time of such performance, had put on the stand two witnesses, who testified that Brain and Seffer did a certain amount of such work in December. Brain and Seffer were not present at the trial, and their evidence was not given. Their absence was not accounted for. The defendant, however, to offset this testimony as to the whereabouts of Brain and Seffer at the time in question, introduced in evidence certain entries from the records of the Copper Queen Mining Company, — to wit, the receipts on the pay-rolls of the company for the month of December, — purporting to be signed by the men, Brain and Seffer, in December, showing that they had worked for that company twenty-six and thirteen days respectively in that month. No other evidence to show that the men were working for the Copper Queen Mining Company was introduced. The jury might well assume, however, that if the pay-rolls were correct, the work on the mine could not have been done by these men as testified to by the plaintiffs’ witnesses, and the evidence of the pay-rolls doubtless had weight in influencing the jury' in finding their-verdict.
We think the evidence was improperly admitted. The paymaster of the Copper Queen Mining Company testified, in substance, that the records were the records of the company; that it was the custom of the company for the men to sign the pay-rolls before they could get their money, and that it was necessary for them to do so; that these pay-rolls were the pay-rolls for December; that they were signed by men
Although the point does not seem to have been raised by counsel in the court below, or in this court, in view of the fact that the case must go back for a new trial, we deem it proper to point out that, under the allegations in the defendant’s cross-complaint with respect to the relocation by the defendant of the claim as a forfeited claim, the location notice of the defendant would seem to be void, in failing to state that the claim was located as forfeited or abandoned property, as required by the statute, and would seem to afford the defendant no ground for the relief claimed. Cunningham v. Pirrung, 9 Ariz. 288, 80 Pac. 329.