230 F. 965 | 8th Cir. | 1916
“These rules shall be in force on and after February 1, 1913, and shall govern all proceedings» in cases then pending or thereafter brought, save that where in any then pending cause an order has been made or act done which can not be changed without doing substantial injustice, the court may give effect to such order or act to the extent necessary to avoid any such injustice.”
The irecord does not show whether the demurrer was submitted before or after February 1, 1913, but on September 17, 1913, long after the new rules took effect, the court sustained the demurrer and dismissed the case at plaintiff’s cost. Of course demurrers were abolished by the new rules, but we shall assume either that the demurrer was submitted before February 1, 1913, or that the court treated the demurrer as a motion to dismiss under rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi).
Howard Weber holds so-called drilling contracts from Oliver Bag-by and the Vinita & Chelsea Oil Company upon certain lands in Oklahoma. There was litigation concerning these drilling contracts, to which both Weber and Hertzell were parties in the District Court of Washington county, Okl., where the case was decided in favor of Weber. That case went to tire Supreme Court of Oklahoma and was there affirmed. Hertzell et al. v. Weber et al., 31 Okl. 5, 120 Pac. 589. From the opinion in that case a more full statement will be found of the facts in this controversy than we deem it necessary to give here. That case was decided in the district court of Wash
The plaintiff also contends that there are certain estoppels by conduct of Hertzell. The allegations in this connection are of estop-pels in pais or equitable estoppels.
Of course it is true that a court of equity will not refuse jurisdiction unless the jurisdiction of the law is full, adequate and complete. Boyce v. Grundy, 3 Pet. 210, 7 L. Ed. 655. And it is true that under the peculiar facts in Drexel v. Berney, 122 U. S. 241, 7 Sup. Ct. 1200, 30 L. Ed. 1219, Wehrman v. Conklin, 155 U. S. 314, 15 Sup. Ct. 129, 39 L. Ed. 167, Davis v. Wakelee, 156 U. S. 680, 15 Sup. Ct. 555, 39 L. Ed. 578, Clews v. Jamieson, 182 U. S. 461, 21 Sup. Ct. 845, 45 L. Ed. 1183, and Donovan v. Pennsylvania Co., 199 U. S. 279, 26 Sup. Ct. 91, 50 L. Ed. 192, the jurisdiction in equity was sustained but the peculiar facts which resulted in its being sustained in those cases do not appear in this case. They all proceeded upon the theory that there were independent equities in the bills aside from the question as to whether they were equitable estoppels. The use of the term “equitable estoppel” has a tendency to confusion. In the
We conclude that all the matters relied upon in the bill in this case were equally available at law as in equity, and that the ruling of the District Court was correct; and it is affirmed.