Miocene Ditch Co. v. Moore

150 F. 483 | 9th Cir. | 1907

ROSS, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

Objection is made on the part of the appellee and respondent to the right of this court to review the order in question. We have no doubt of our jurisdiction to do so. The amendment to the plaintiff’s complaint brought into the controversy waters in no way , embraced by the original complaint, and the decree that was vacated by the order undertook to fix the rights of the respective parties thereto in connection with their respective rights to the waters covered by the original complaint. Therefore the order vacating and setting aside the decree, the findings, conclusions of law, the amendment to the complaint, and the other pleadings relating thereto, upon which the decree was based, was certainly a final disposition of the rights of the appellant with respect to the waters brought into the suit by the amended pleadings, and was therefore appealable. The term of the court at which the decree was vacated by the order in question not having then expired, there can, we think, be no doubt of the inherent power of the court to set it aside on motion, if the facts justified such action, by which is, of course, meant, not the exercise of an arbitrary power, but a power based upon good and sufficient reason. Judicial power can never be properly exercised for the purpose of giving effect to the arbitrary will of the judge. Osborn v. United States Bank, 9 Wheat. 866, 6 L.Ed. 204; Harris v. Harris, 31 Grat. (Va.) 15, 16; Isaacs v. United States, 159 U.S. 489, 16 S.Ct. 51, 40 L.Ed. 229; United States v. Detroit (U.S.) 26 S.Ct. 284, 50 L.Ed. 499; United States v. Rio Grande, 184 U.S. 422, 22 S.Ct. 428, 46 L.Ed. 619; In re Neagle, 135 U.S. 42, 10 S.Ct. 658, 34 L.Ed. 55; La Abra Silver Mining Company v. United States, 175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223; Metropolitan v. Moore, 121 U.S. 572, 575, 7 S.Ct. 1334, 30 L.Ed. 1022; Ross v. Saunders, 105 F. 917, 45 C.C.A. 123; In re Curtis, 100 F. 785, 41 C.C.A. 59.

We proceed to consider whether the action of the court below in making the order complained of was proper in view of the circumstances of the case. The record shows that the suit had been brought by the appellant against the appellee and one Campion (as to whom it was subsequently dismissed) to establish the appellant’s alleged right to 2,-100 inches, miners’ measurement, of the waters of Nome river, and to enjoin the diversion by the appellee of any of the waters of one of the tributaries of that river, namely, Buffalo Creek, at a point above the intake of the appellant’s ditch; that after issue had been joined by the appellant to the allegations of the complaint the action was duly tried before the court below, and submitted to it on the 12th day of July, 1905, for final decision, the trial lasting from June 21 to July 12, 1905. William A. Gilmore, the original attorney for the appellee in the case, then left Alaska for one of the eastern states, according to the undisputed showing made before the court below on the hearing of the motion to vacate the decree, leaving his associate attorney in the case, Dudley Du Bose, in Alaska, and also the secretary of the appellee which is a corporation of the state of Illinois. It is contended on behalf of the appellant that the decree vacated by the order complained of was entered by consent of the respective parties thereto, and in pursuance of a compromise made by them. That a so-called compromise was the basis of that decree is clearly shown by the record. Those proceedings were commenced in the court below by the filing of an amendment to the complaint, an answer of the appellee thereto, and the reply of the appellant, all of which were filed on the same day, to wit, July 25, 1905, and all of which appear from the record to have been prepared the day previous, the verification of which on the part of the appellant appearing to have been waived by Du Bose, and on the part of the appellee by the attorneys for the appellant. By these pleadings rights claimed by the appellee to the waters of separate and distinct streams from either of the streams involved in the suit as tried and submitted, to wit, the waters of Grand Central river and David creek, were brought into the suit and undertaken to be disposed of, along with the waters of Nome river and Buffalo creek. During all of this time the appellee was a corporation of the state of Illinois, where its place of business was, and where resided its president and directors. Its sole representative in Alaska, apart from its attorney, Du Bose, was its secretary, Niggemeyer, whose affidavit filed in the court below in support of the motion to vacate the so-called compromise decree states in effect that he was sent by the president and board of directors of the appellee to Nome, Alaska, to assist the attorneys of the company in trying the cause; “but was not given any authority or directions to enter into any combination with other companies, or to make any settlement or compromise with plaintiff [to the suit], or to do any other act than to have the said cause tried and submitted to the court.” Even if it be assumed that Niggemeyer had authority to inject into the suit other property of the appellee in no way connected with it, and to consent to a decree disposing of the appellee’s rights, the record, we think, shows without any substantial conflict that he never did in fact do anything of the sort.

Passing his affidavit, in which he distinctly denies that he had any such authority, or ever claimed to have, and asserting that he refused to consent to the so-called compromise, and to any disposition of the appellee’s rights by agreement of counsel, but, on the contrary, protested against the proceedings and the entry of the decree of July 26, 1905, and considering the affidavit of Du Bose introduced and relied on by the appellant — we fhink it clearly appears that Niggemeyer did not give his consent to the proposed compromise and disposition of the rights of the’ appellee, but, on the contrary, protested against those proceedings and disclaimed any authority on his part to give any such consent. The case shows that the appellee claimed rights to the waters of Grand Central river and David creek, among other streams, and that it had done a considerable amount of work and incurred large expense towards the diversion of the waters of Grand Central river and David creek; yet, although the suit as originally brought and as tried and submitted to the court for decision embraced only the appellant’s alleged right to 2,100 inches, miners’ measurement, of the waters of Nome river, and the appellee’s alleged right to divert certain waters of Buffalo creek above the intake of the appellant’s ditch, the decree which was entered in pursuance of the so-called compromise proceedings, not only in terms established the appellant’s right to the first 2,100 miners’ inches of the waters of Nome river, and perpetually enjoined the appellee from diverting any water from Buffalo creek above the appellant’s intake that would interfere with such fixed right in the appellant, but further decreed: “That when the waters of the Grand Central river and its tributaries and David creek or some or any of them have been diverted from their natural channel or channels by the parties hereto [namely, the parties to the decree], or either of them, and mingled with the waters of Nome river, or any of its tributaries, above the present intake of the ditch of the plaintiff on said Nome river, and when the natural flow of said Nome river and tributaries does not reach 2,100 miners’ inches at any time, then the said plaintiff shall have the first right to the waters diverted thereto and artificially placed therein until from all said sources it shall be diverting at said intake 2,100 miners’ inches of water; that, when the said plaintiff shall be constantly receiving at its present intake on Nome river the first 2,100 miners’ inches of water received from all said sources and running therein, then the defendant Campion Mining & Trading Company shall from the surplus then there, if any, have the right to the second 2,100 miners’ inches of said water, and the right to divert the same, and, should there then be any surplus over and above said 4,200 miners’ inches of water running in said Nome river from all said sources, then the same is to be equally divided between said plaintiff and defendant, provided, however, that should the said Campion Mining & Trading Company not pay, or cause to be paid, to plaintiff, as soon as estimated, and upon demand, the full one-half of all of the costs and expenses of excavating and creating all of the necessary conduits, ditches, pipes and flumes, not already constructed, for carrying said water from said Grand Central river and said David creek to said Nome river, and thereafter maintaining the same, and betterments and additions to the same, then defendant Campion Mining & Trading Company shall not be entitled to divert and use any of said waters taken from said David creek and Grand Central river, or any of the tributaries thereof.”

Surely this was a very comprehensive and sweeping disposition of the rights of the appellee corporation, if any it had, not only to the waters of Buffalo creek, but also to the separate and distinct streams, called “Grand Central River” and “David Creek,” that were brought into the suit solely by means of the so-called compromise proceedings. Not only did Niggemeyer in his affidavit disclaim any authority to consent to any such disposition of the rights of the corporation of which he was secretary, but it appears that there was then existing an injunction issued by one of the courts of the state of Illinois against the appellee corporation and all of its officers, including its secretary, prohibiting them from making any disposition of any of its property or assets, of the existence of which injunction Du Bose, in his affidavit, admits that he had actual knowledge as early as the evening of July 24, 1905, which was previous to the filing or presentation to the court of any of the so-called compromise proceedings. Du Bose, therefore, not only knew prior to the entry of the consent decree, and prior to the filing of any of the papers upon which it was based, that Niggemeyer was enjoined by one of the courts of the state of Illinois from undertaking to make any disposition of any of the property of the appellee corporation, but his own sworn statement of what occurred between himself and Niggemeyer very clearly shows that Niggemeyer never gave consent to the so-called compromise proceedings, but, on the contrary, protested against them, and against any such disposition of the appellee’s rights.

That portion of Du Bose’s affidavit is as follows:

“About the 15th or 16th of June, 1905 (which was about the time of the commencement of the trial of the suit in the court below), Mr. C. A. Ferrin was frequently in affiant’s office in regard to the merger deal consolidating the Bank of Cape Nome and the Alaska Banking & Safe Deposit Company. During one of these times affiant remarked to Ferrin that inasmuch as he was such a good settler that he had better settle the Miocene-Campion Case, as it would be very expensive to every one. Ferrin said he would take the matter up with W. H. Metson, and afterwards did so. On Friday, July 21, 1905, Ferrin came to affiant’s office and asked him if he would not meet W. H. Metson at Met-son’s office in Nome, at 8:30 o’clock that evening, in company with said Ferrin. We met at that time and place and talked over the matter until 12:30 o’clock that night, and finally came to the following arrangements: The Miocene Ditch Company should have the first 2,100 inches of water, and the Campion Mining & Trading Company should have the second 2,100 inches of water, and the balance of the water should be equally divided between the Miocene Ditch Company and the Campion Mining & Trading Company; that the ditch to David creek should be built immediately, and the ditch to Grand Central river should be built as rapidly as possible, each party to pay half the cost of construction of these two ditches. It was contemplated at that time that this agreement should be in the form of a contract. This was the first and only time that affiant saw W. H..Metson or any officer or agent of the Miocene Ditch Company regarding this settlement until after the offer had been accepted by B. Niggemeyer. At the end of the interview above referred to with W. H. Met-son affiant told Metson and Ferrin that he would submit this proposition to B. Niggemeyer and Dr. Cabell Whitehead, the attorney in fact for the Seward Ditch Company, and stated that under Dr. Whitehead’s contract with the Campion Mining & Trading Company it could not settle this litigation without his consent. At that time W. H. Metson intended to sail on the steamship Ohio, which was due to sail on Monday, July 24, 1905. The next morning affiant telephoned to B. Niggemeyer, who was then at the U. S. roadhouse, about 25 miles from Nome, to come to Nome at once on important business. Niggemeyer telephoned to affiant that evening that it was impossible for him to come that day, but he would leave that night. On Saturday, July 22, 1905, affiant was unable to tell Dr. Whitehead about this matter, for the reason that he, Whitehead, was not in Nome. Affiant saw Dr. Whitehead Saturday evening and requested him to meet him at his office the next morning.

“Sunday morning, July 23d, at about 10:30 or 11 o’clock Dr. Whitehead came to affiant’s office. While affiant and Dr. Whitehead were sitting in affiant’s office affiant looked out of the window and saw Niggemeyer coming into town. In a few minutes Niggemeyer came into affiant’s office. Whitehead then left affiant’s office, and made an appointment to meet Niggemeyer that evening. Affiant told Niggemeyer that there was a compromise on foot; but, as he had been traveling all night, he had better go to bed and hear them that evening. Niggemeyer said he wanted to hear the terms then, as he could not sleep without knowing what they were. Affiant then told Niggemeyer the terms of the proposed compromise. Niggemeyer then repeated the terms of the proposed compromise, as stated by affiant, and said, ‘The Miocene are to get the first 2,100 inches, and we the second 2,100 inches?’ Affiant told him that was so. Niggemeyer then said, ‘Would not the Miocene Company be willing to divide equally?’ and affiant told him they would not, that that matter had been thrashed out, and that the proposition would have to stand or fall as it was. Niggemeyer then began estimating the amount of water that he would have during the present season under this compromise. Niggemeyer said that Nome river and Buffalo creek at the intake of the Miocene Ditch Company carried only a little over 3,000 inches last year, but that was a very dry season, and he thought that ordinarily it would carry about 3,500 inches, and that the David creek ditch would bring in 600 or 700 inches more. He asked affiant when the David creek ditch would be built under this settlement, and affiant told him it would be built immediately. Niggemeyer said it could be built in two weeks. There was nothing more said in regard to the 2,100 inches of water during that conversation. Niggemeyer did not seem to think, nor did affiant believe, that who got the first 2,100 inches would cut very much of a figure. Niggemeyer then said that he would take the settlement if he could make terms with Dr. Whitehead to furnish the money; for, under this settlement, the people who had invested their money in the Campion Mining & Trading Company would more than get their money back several times over. In this connection, he told affiant that nearly all of the stock of the Campion Mining & Trading Company that had been sold had been sold by him; that he had induced people to go into this scheme who could ill afford to do so; that women with limited means had put their money into the company on his word alone. Niggemeyer also at that time gave an instance of an old man, a cousin of his, who lived in St. Louis, Mo., who had put $1,200 into the Campion Mining & Trading Company on Niggemeyer’s representations. He said that this cousin was too old to work and had very little money on which to live. Affiant advised Niggemeyer at that time to consent to the settlement if he could arrange with Dr. Whitehead for the money. Affiant used no arguments at that time to induce Niggemeyer to go into the settlement, outside of the fact that he advised him to do so. The foregoing is, in substance, all that occurred on the morning of July 23, 1905. The conversation that morning did not last more than 30 minutes. Niggemeyer then left affiant’s office, and said that he was going to bed. Niggemeyer again called at affiant’s office Sunday evening, July 23, 1905, and was not there five minutes. In fact, he did not even sit down. Niggemeyer said he was late in meeting Dr. Whitehead, and he would go at once and make terms with him. Affiant asked him if he was still of the opinion that he would agree to the settlement; and he said that he was. That was all that was said at that conversation.

“On Monday morning, July 24, 1905, Niggemeyer and Dr. Whitehead met in the office of affiant. We went over the lines of the compromise, and there could not possibly be any question that Niggemeyer fully understood the terms that were agreed upon. Niggemeyer was in affiant’s office about two hours on that Monday morning. Finally Niggemeyer and Whitehead agreed that Whitehead should provide the money required by the Campion Mining & Trading Company for the building of the Grand Central ditch and the David creek ditch, on the condition that Niggemeyer reduce the price of water from 25 cents an inch to 15 cents an inch for each 24 hours during the period of 10 years. Affiant distinctly remembers in that interview that Whitehead figured to Niggemeyer that at 15 cents an inch, under this settlement, Niggemeyer would get more money for the Campion Mining & Trading Company, on account of the additional amount of water they would get from Grand Central river and David creek, than if the Campion people won the full capacity of its ditch in its lawsuit with the Miocene Ditch Company. This Monday morning interview ended at about 12 o’clock. Niggemeyer offered Whitehead, at first, if he would lend him the money, to build these ditches, to let him have the water at 20 cents an inch, and Whitehead offered IS cents an inch. Niggemeyer then came down to 17j4 cents an inch, but Whitehead stuck- to IS cents, and they finally agreed on IS cents. Niggemeyer ended by saying to Whitehead, Won’t you give in anything?’ and Whitehead said, ‘The only thing I will give in is I will buy you a drink when the papers are signed.’ Niggemeyer left affiant’s office that Monday morning without saying anything which would lead affiant to believe that he was at all dissatisfied with the settlement. At about 2 o’clock on July 24, 1905, Mr. Ira D. Orton and affiant went before Hon. Alfred S. Moore, judge of the above-entitled court, in his chambers, and told him that the Miocene-Campion Case had been settled, but the papers had not yet been prepared.

“On the evening of July 24, 1905, affiant was in W. H. Metson’s office, arranging the form of the papers for the settlement, when some one, knocked at the outside door. One of the stenographers went to the door, and came in and said some one wanted to see the affiant. Affiant went into the hall and found Niggemeyer there. Niggemeyer' was trembling like a leaf, crying, and very much excited. The very' first words he said to affiant were, ‘Let’s drop this deal, Judge, and let the court decide it.’ Affiant said, ‘Why have you changed your mind?’ He told affiant that a lawyer who was a good friend of his had come to him and told him that he would get in jail on account of the injunction issued by the superior court of Cook county, 111. He said his lawyer had asked him if affiant had seen the injunction, and he told him that affiant had not. The lawyer told him that he had better show it to affiant. Affiant asked him where the injunction was, and he told affiant he had it in his room at the hotel. Affiant then told him to go and get it, and to meet affiant at his office in half an hour. There was nothing said in that conversation about 2,100 inches of water, or of any dissatisfaction with the contract, except the statement that he would get into contempt of court. Niggemeyer spoke of the fact, at that time, that he had a family, and he could not afford to be disgraced by going to jail. Niggemeyer brought the injunction over to affiant, and affiant asked him when he was served with it, and he said in Seattle, by mail. Affiant read over the injunction, and told Niggemeyer that this settlement was not disposing of the assets of the Campion Mining & Trading Company, but that it was a preservation of the assets of his company, for the reason that if some substantial work was not done during the season of 1905 on the Grand Central water right and the David creek water right that the Campion Mining & Trading Company would forfeit its rights, and that other parties would obtain them, that the Central Water Company was already figuring to get the waters of Grand Central river. Affiant also told him at that time that he did not believe it was good policy not to continue the compromise after we had once started into it.

“Affiant on the evening of July 24, 1905, used every legitimate argument to induce Niggemeyer to go on with the settlement, believing, as affiant said before, that it was the wrong time to change front, after the court had been notified of the settlement. One of the other arguments used by the affiant at that time was that Metson and Orton, two reputable lawyers, and Bliss, Davidson, and Leland, three reputable business men, had all sworn in the trial of the cause that T. A. Campion had agreed that the rights of the Miocene Ditch Company were prior to those of the Campion Mining & Trading Company, and opposed to this testimony was the testimony of a man like T. A. Campion. Affiant also told him at that interview that the danger was that if the court found against his company that he must find damages in a large sum. Affiant thinks he said $50,-000, the amount claimed in the supplemental complaint of plaintiffs, which would wipe the Campion Mining & Trading Company off the map. Niggemeyer then told affiant that Judge T. M. Reed was the lawyer who had spoken to him about this matter, and that Judge Reed had told him that he had information that the court would decide the case for the Campion people. Affiant told Niggemeyer that he did not know what the source of Judge Reed’s information was, but that the affiant’s information was exactly the opposite. There was nothing said by the affiant at that time in regard to a ‘straight tip,’ nor that the court would issue an injunction, nor that the affiant’s information was that the court would render a judgment for $47,000, or for any other sum or amount against the Campion Mining & Trading Company. Affiant, in that connection, also told Niggemeyer that said T. M. Reed was T. A. Campion’s attorney, and that Campion was opposed to anything that was to the best interests of the Campion Mining & Trading Company; that Campion imagined that everywhere he staked a water right, that he absolutely owned the water, whether he did sufficient work to put it to a beneficial use or not. After talking with Niggemeyer that evening for about an hour, Niggemeyer went away completely satisfied. There was nothing said in that conversation in regard to 2,100 inches of water at all. Niggemeyer, before leaving that evening, told affiant to go on with the settlement.

“The following morning, July 24, 1905, as affiant came out of the breakfast room of the Golden Gate Hotel, at about 10 o’clock, affiant met Niggemeyer, Niggemeyer said he had not slept any the night previous; and he looked it. Niggemeyer’s whole conversation at that time tended to the effect that his family was going to be disgraced if this deal went on, for the reason that he would go to jail. Affiant told him to come over to his office, which he did. Affiant requested Dr. Whitehead to come up to his office and see Niggemeyer. Affiant brought Dr. Whitehead up to his office for the express purpose of bracing Niggemeyer up in this settlement. Affiant told Niggemeyer that morning that if he would discharge affiant from the case that he would withdraw from the case, and Niggemeyer could get some one else to resubmit it, but as affiant had made this agreement with Niggemeyer’s consent, and had so notified the court, that affiant was not going to the court and retract it for the simple reason that Niggemeyer was afraid to carry out his trust to the people he had induced to get into the Campion Mining & Trading Company.

“Again, on the morning of the 25th of July, 1905, Niggemeyer asked affiant if he could not get an even division of the water without giving thé Miocene Ditch Company the first 2,100 inches, and affiant again told him that that was impossible. Niggemeyer again told affiant to go on with the settlement at that time. The only condition that should be on the agreement was that he should not sign anything, so that it would not get him into contempt of court, and that affiant should tell F. Herhold that affiant took the responsibility of advising the settlement. Affiant said that he would take that responsibility, and, when affiant would go to Chicago this fall, would explain the settlement to F. Herhold and the other directors of the company. Affiant did not see Niggemeyer from the time he left affiant’s office on the morning of July 25, 1905, for several •days thereafter, when Niggemeyer came into town and told affiant that the Miocene Ditch Company would not give him any water. Niggemeyer then, for the first time, told affiant that he had made a mistake in making the settlement ; that he could have made a better deal with the Wild Goose Company for the Grand Central ditch. Affiant asked him how he knew that, and he said that the proposition had been made to him. Affiant asked him who made it, and he said it was made by a man who was way up in the Wild Goose Company.”

Nothing, we think, can be plainer from these statements of Du Bose himself than that Niggemeyer never did in fact consent to the so-called compromise, but, on the contrary, protested against its being carried into effect, and that Du Bose undertook to assume the “responsibility.” But Du Bose had no such power. In his affidavit he admits “that the case of the Miocene Ditch Company against the Campion Mining & Trading Company was the cause of” his employment, and he thus states that employment: “Some time in December, 1904, F. Herhold [the president of the appellee corporation] and B. Niggemeyer called several times on the affiant at the Auditorium Annex Hotel in said Chicago. At one of these interviews the affiant was employed by Herhold and Niggemeyer as the attorney for the Campion Mining & Trading Company. At the time of the employment there was nothing said about taking depositions, nor limiting the employment to any special matter or occasion. It is true that the case of the Miocene Ditch Company v. Campion Mining & Trading Company was the cause of the employment. During these first interviews with Herhold and Niggemeyer affiant was informed by Niggemeyer that there were no known values in any of the mining properties of the Campion Mining & Trading Company; and after consultation it was decided that the best interests of the company would be subserved by selling the water. Affiant was authorized to write to Dr. Cabell Whitehead, of the Seward Ditch Company, and also to get in touch with W. H. Metson, with the view of selling the water, the preference to be given to Metson, for the reason that selling it to him would settle the lawsuit. In pursuance to this consultation, in January, 1905, affiant wrote to Dr. Cabell Whitehead, in Washington, D. C, and himself went to New York, and there met a party who was closely connected with the Miocene Ditch Company, and requested him to see Metson on the subject of purchase of the waters of the Campion Mining & Trading Company. On March 2, 1905, the affiant was again in Chicago, and met W. H. Metson, and offered to sell Metson the water rights of the Campion Mining & Trading Company. Metson declined this offer, but made a counter proposition to settle the case, and on March 4, 1905, Herhold, Niggemeyer, and affiant met W. H. 'Metson in Metson’s room at the Auditorium Annex Hotel, in Chicago. Metson then made the proposition to settle the Miocene-Campion Case. Metson’s proposition was to retain all the waters of Nome river; for the Miocene Ditch Company and the Campion Mining & Trading Company to equally divide the waters of Buffalo creek; build the Grand Central ditch, and each party to pay half the cost of construction thereof, with the proviso that the Campion Mining & Trading Company should not sell the water to any one without first giving the Miocene Ditch Company the refusal thereof at the same figure. This proposition affiant advised his clients hot to accept, for the reason that it did not relieve the situation in the least with that proviso added. In April, 1905, affiant again met Niggemeyer and Herhold and Dr. Cabell Whitehead in affiant’s room at the Auditorium Annex Hotel, Chicago, Ill. Dr. Whitehead at that time, as the attorney in fact for the Seward Ditch Company, made a contract with the Campion Mining & Trading Company to buy all the waters of Nome river and Buffalo creek, claimed by the Campion Mining & Trading Company, for 25 cents an inch for each 24 hours during the mining seasons for 10 years. Affiant took some depositions for the Campion Mining & Trading Company in San Francisco, Cal., and Seattle, Wash., in May and June, 1905. This was done by no special employment. The fact is that affiant stipulated to take these depositions without any suggestions from any officer of the Campion Mining & Trading Company. Affiant arrived in Nome, Alaska, on the 13th day of June, 1905, on the steamship Victoria, and B. Niggemeyer was on the same boat with affiant. W. A. Gilmore, attorney at law, who had been previously engaged in the above-entitled cause by T. A. Campion, had stipulated before the arrival of affiant in Nome that the same might be set for trial for June 21, 1905. B. Niggemeyer was not in favor of keeping said Gilmore in the employment of the defendant corporation in the case. Affiant advised him to continue said Gilmore, as he was familiar with the facts in the said case. After several conversations Gilmore was continued in the case.”

If it be conceded that the terms of Du Bose’s employment, as stated by him, conferred upon him the absolute and unrestricted power to sell the water claimed by the appellee, it would give him no power to dispose of the appellee’s right, as was undertaken to be done in and by the so-called compromise proceedings, which was not and did not pretend to be any sale of those rights. It ought not to be necessary to cite authorities in support of the proposition that an attorney at law, by virtue of his general retainer, acquires no authority to inject into a suit against his client property in no way involved in or connected with it, and then consent to a disposition of that property by a compromise decree.

In the case of United States v. Beebe, 180 U.S. 343, 351, 21 S.Ct. 371, 45 L.Ed. 563, the court quoted this paragraph from the opinion of Chief Justice Marshall in Holker v. Parker, 7 Cranch, 436, 3 L.Ed. 396: “Although an attorney at law, merely as such, has, strictly speaking, no right to make a compromise, yet a court would be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on, or not fairly exercised in the case. But, where the sacrifice is such as to leave it scarcely possible that, with a full knowledge of every circumstance, such a compromise could be fairly made, there can be no hesitation in saying that the compromise, being unauthorized and being therefore in itself void, ought not to bind the injured party.”

And the court in United States v. Beebe proceeded to say: “The same has been held in Massachusetts in Lewis v. Gamage, 1 Pick.(Mass.) 347, and in New York in Barrett v. Third Avenue Railroad Company, 45 N.Y. 628, 635, and Mandeville v. Reynolds, 68 N.Y. 528, 540. And see Kilmer v. Gallaher (Supreme Court of Iowa, December 22, 1900) 84 N.W. 697, 84 Am.St.Rep, 358, 52 Cent.Law J. 150, and note; Bigler v. Toy, 68 Iowa, 688, 28 N.W. 17. Indeed, the utter want of power of an attorney, by virtue of his general retainer only, to compromise his client’s claim, cannot, we think, be successfully disputed. A judgment entered upon such a compromise is subject to be set aside on the ground of the lack of authority in the attorney to make the compromise upon which the judgment rests. Prima facie, the act of the attorney in making such compromise and entering or permitting to be entered such judgment is valid, because it is assumed the attorney acted with special authority, but, when it is proved he had none, the judgment will be vacated on that ground. Such judgment will be set aside upon application in the cause itself, if made in due time or by a resort to a court of equity where relief may be properly granted. In Robb v. Vos, 155 U.S. 13, 15 S.Ct. 4, 39 L.Ed. 52, it was held that, although the judgment was on its face valid and regular, yet, inasmuch as the attorney who appeared on behalf of one of the defendants did so without the consent of his principal, the remedy of the principal, when the facts came to his knowledge, was in equity, where the judgment might be set aside as to him. So, if the judgment be in fact entered upon a compromise made by the attorney who had no authority to make it, the judgment may be attacked and set aside in an equitable action upon proof of the necessary facts. ■ Although the judgment is not void for want of jurisdiction in the court, it will yet be set aside upon affirmative proof that the attorney had no right to consent to its entry. It is said that the judgment being valid on its face, evidence to contradict its recitals is not admissible, unless in case of such a fraud as will be. relieved against in a court of equity. Fraud under certain circumstances is a ground upon which a judgment may and will be set aside; but, in addition to such ground, where, as in this case, the judgment is entered upon a compromise made by an attorney, entirely unauthorized, and without any trial, we have no doubt that such fact may be proved in order to lay the foundation for an application to a court of equity to set the judgment aside, although the proof contradicts the ■ record of the judgment itself, and shows that in fact there was no jury, no trial, and no verdict.”

See, also, Harper v. Insurance Company, 56 F. 281, 5 C.C.A. 505; Bates v. Seabury, Fed.Cas.No.1,104; Senn v. Joseph (Ala.) 17 So. 543; Filby v. Miller, 25 Pa. 264; Mandeville v. Reynolds, 68 N.Y. 528; Dickerson v. Hodges, 43 N.J.Eq. 45, 10 A. 111; Gray v. Howell, 205 Pa. 211, 54 A. 774; Danziger v. Shoe Co., 204 Ill. 145, 68 N.E. 534; Fleishman v. Meyer (Or.) 80 P. 209; Smith v. Dixon, 60 Ky. 438; Eaton v. Knowles, 61 Mich. 625, 28 N.W. 740; Spears v. Ledergerber, 56 Mo. 465; Isaacs v. Zugsmith, 103 Pa. 77.

The order is affirmed.