230 F. 968 | 9th Cir. | 1916
“A bill oí review is a dernier ressort, devised to relieve a party who has suffered a substantial wrong from the miscarriage of justice in the former proceedings. And the inquiry deals with the state of things existing at the time of filing the bill of review.”
The appellant in his petition and the bill of review which he proposes to file alleges two errors of law appearing on the ‘record, and refers to evidence which, he says, is now available, and which was not presented on the former trial of the case. '
It does not clearly appear from the bill or the petition just what new evidence the appellant proposes to adduce in addition to that which was presented on the trial, nor does it appear that it is newly discovered evidence. As we understand the allegations, they are: First, the appellant will offer evidence to show that the appellee on the trial of the cause withheld from the court evidence which was pertinent to the issues. The precise nature of that evidence is not disclosed, and the allegations are not sufficient to show that there was any fraudulent concealqient of it. Second, it is claimed that the appellant will show that the appellee is estopped to dispute the validity of his location of the quartz mining claim in controversy by the fact that immediately after the commencement of the suit in the court below the defendant itself procured a mining lode • location to be made thereof for its own benefit. We are unable to see how an estoppel could arise from that act, if¡ it were proven. The appellee may have been moved to, make such a lode location in order to forestall further hostile acts of locators who might seek to obtain from the ap-pellee property to which it had title under a placer location.
We have not overlooked the petitioner's allegations that owing to his financial condition he was without means to employ counsel upon the hearing of the case in the court below, and was without advice as to the amount of proof required and as to his rights in a court of equity, and that through misadventure he failed to present to the lower court, and was unable to discover the amount of proof which was required from him for the protection of his substantial rights. On account of the fact that the petitioner was without .counsel and was himself evidently unskilled in the law, this court took particular
The petition is denied.