People ex rel. Darby v. District Court

| Colo. | Jan 15, 1894

Chief Justice Hayt

delivered the opinion of the court.

Did the district court exceed its jurisdiction in the contempt proceedings? This is the only question presented for consideration upon this application. Undoubtedly that court had jurisdiction of the adverse proceedings in which the writs of injunction were issued, and the court being one of general jurisdiction we must assume in this proceeding that the injunctions were in all respects regularly and properly issued, nothing to the contrary appearing.

The injunctions restrained the plaintiffs, “ their agents and employees and all persons acting for them and all persons claiming under any contract or agreement into which the plaintiffs or any of them after commencement of said suits and all persons in privity with said plaintiffs or any of them, from removing and from mining and selling any of the ores or minerals of or within the boundaries of the Walter lode mining claim in Cripple Creek mining district in the county of El Paso and from disposing of any of said ores already mined or the proceeds thereof.”

That the petitioner violated the terms of these injunctions is admitted. His defense is based upon an alleged purchase of the property after the commencement of suit, but before any affirmative relief had been asked by the defendant. It is sufficient for the purposes of this application to know that he was included within the very terms of the restraining orders ; that he was present in court and had full knowledge of the nature and extent of those orders. If he had any reason to believe the mandate too broad he should have taken steps to have had the same modified. In any event, it was his duty to implicitly obey. He violated it at his peril and can now look only to the court out of which the injunction issued, for relief.

It is claimed that petitioner cannot be bound by the proceedings in the adverse cases in the absence of a filing of a notice of lis -pendens. While it is true that by section 277 of the Code of 1887, the filing of such a notice is made applicable to actions for the possession of real property, this cannot affect the result in adverse proceedings under the acts-of Congress.

The defendant having applied for a patent at the proper land office, and legal notice of such application having been given and proof thereof made, all adverse claimants were required to file their claims to the territory covered by such application in order that their rights may be preserved. It is also necessary for such adverse claimants to commence proceedings in a court of competent jurisdiction within thirty days thereafter, to determine the right of possession to the property in controversy, and prosecute the same with reasonable diligence to final judgment, and a failure to to do must be taken as a waiver of such adverse claims. And it is made the duty of the land department to be governed by the final judgment in such cases, and to issue a patent accordingly. Revised Stat. TJ. S., 2325, 2326.

Petitioner purchased during the pendency of the adverse suits, after the application for a patent to the property had been made, and at a time when it was too late to file any new adverse. Unless he took the property subject to the rights of the parties in litigation, he has no claim thereto. In Hunt v. Eureka Gulch M. Co., 14 Colo. 451" court="Colo." date_filed="1890-04-15" href="https://app.midpage.ai/document/hunt-v-eureka-gulch-mining-co-6561946?utm_source=webapp" opinion_id="6561946">14 Colo. 451, the following language of Mr. Justice Brewer is quoted with approval upon page 455: — “ Publication of notice is process bringing all adverse claimants into court, and, if no adverse claims are presented, it is conclusively presumed that none exist, and that no third parties have any rights or equities in the land.”

This is the settled doctrine of both the land department and the courts, and it necessarily follows that the conclusive effect of the judgment in this class of cases is in no way dependent upon the filing of a notice of Us pendens.

It is contended that the judgment in the contempt proceedings was premature, and that the court had no power to render the same at the time at which it was rendered. In support of this contention section 149 of the Civil Code of 1887 is relied upon. This section has reference solely to proceedings before a judge at chambers for the violation of a writ of injunction and has no application to this case.

These proceedings were all had and done by the court when regularly convened for the transaction of business. The court was as fully empowered to enter a final judgment at the term then pending as it could have been at the next or any succeeding term.

The petitioner’s application will be denied.

Writ denied.