26 Mont. 193 | Mont. | 1901
Lead Opinion
delivered tbe opinion of tbe court.
Tbis action was brought by tbe plaintiff to obtain a decree awarding to bim an undivided oneffourtb interest in tbe Comanche lode claim (patented), situate in Silver Bow county, and for an accounting for ores extracted and removed therefrom by tbe defendant, and converted to its own use. Upon tbe filing of tbe complaint an application was made for an injunction to restrain defendant from extracting or removing ores pendente lite, and, after a bearing upon an order to show cause, tbe court made an order granting tbe injunction as prayed. From tbis order tbe defendant has appealed.
Tbe principal questions presented for examination arise upon tbe rulings of tbe district court in excluding certain evidence offered by defendant. Tbe purport of these rulings is best understood by reference to tbe allegations upon which tbe plaintiff bases bis claim of title. Omitting formal matters, a brief synopsis of these is tbe following: That plaintiff is, and since
Tbe complaint referred to in tbe latter part of tbe foregoing synopsis is copied into tbe transcript as a part of tbe complaint; in tbis causes Besides tbe Boston & Montana Consolidated Copper & Silver Mining Company, there are named as defendants therein David N. Upton, George H. Tong, Howard H. Zenor, Nicholas J. Bielenberg, Henry L. Prank, Lula P. Lar-gey, administratrix of tbe estate of Patrick Largey, deceased, Charles S. Warren, and tbe Comanche Mining Company. It sets forth, in substance, all of tbe allegations contained in tbe foregoing synopsis touching tbe location of tbe Comanche claim; tbe proceedings to obtain a patent by Tong and. others; tbe alleged fraudulent exclusion of Upton from tbe application and from tbe patent; the various conveyances from Upton to>-tbe plaintiff; tbe conveyances from tbe patentees to tbe Comanche Company, and from that company to tbe defendant, with tbe allegation of knowledge on tbe part of tbe company and tbe defendant as to Upton’s rights at tbe time tbe respective conveyances were made to them; tbe exclusive possession claimed and held under its conveyance by tbe defendant; tbe mining operations conducted by it; its intention to convey all of its property, including tbe Comanche claim, to a corporation formed outside of tbe state of Montana; the cotenancy of plaintiff and tbe Boston & Montana Consolidated Copper & Silver Mining Company,- — and then continues as follows, alleging by way of information and belief that David W. Upton, before be bad made tbe conveyance to Tong of an undivided one-fourth interest, and before be conveyed tbe other one-fourth interest
No allegation is made in either complaint of any wrongdoing hy defendant Warren, the only reference to him being a statement in both complaints that at the time the application for patent was made he was the owner of an undivided one-eighth interest; he, Largey, Zenor, and Bielenberg having obtained the interest of Turner, the colocator with Upton, hy conveyance from him.
The prayer of the first complaint is for a decree adjudging the plaintiff to be the owner of an undivided one-fourth interest in the Comanche claim; that all adverse claims of the defendant are without right; that the defendant be enjoined, pending the hearing, from mining and taking away ore; and that the plaintiff have general relief.
The prayer of the second complaint is for a decree adjudging the action of Tong and his associates in excluding Upton from the patent to be fraudulent and void; that the one-fourth interest owned by Upton in the Comanche claim under the location was not conveyed to. Patrick A. Largey by the deed to the one-half interest in the Grand Prize claim; that, if it be held that this deed conveyed any interest whatever, it be reformed
Before proceeding to discuss the questions presented by appellant, we stop to remark that no question was made in the coirrt below, nor is any made in this court, as to the form of the complaint, or as to the sufficiency of the allegations contained in it. To say the least of it, the incorporation in the complaint in this case of the allegations contained in the complaint filed in another and a separate cause, naming other parties as defendants by reference, merely, is of very questionable propriety. Inasmuch, however, as the appellant makes no¡ question as to the method adopted in this regard, we pass it without further comment.
1. The appellant contends that the evidence adduced at the hearing was insufficient to- warrant the issuance of an injunction. We shall not now undertake to1 determine the merits of this contention, for the reason that the order must be reversed on other grounds. By the time another hearing can be had in the district court, a wholly different situation may be pre^ sented, and we would avoid prejudicing the rights of the parties as they may then be made to appear. Furthermore, as will appear from matters referred to hereafter, it may be that the rights of the parties will have been finally determined before
2. The plaintiff introduced evidence tending to support the allegations of his complaint. Thereupon the defendant offered to introduce as evidence its proposed answer to the complaint in this cause, and also' the proposed answer in the cause the complaint in which is-adopted as a part of the complaint in this cause by reference. This latter cause is designated in the •district court records as No. 9,081. These answers are verified by one C. S. Batterman, superintendent of the defendant, upon his information and belief. Upon objection, they were excluded as incompetent. Defendant assigns error. The ruling was correct. Ex parte affidavits may be used by the plaintiff as evidence in support of an application for an injunction. (Code of Civil Procedure, Sec. 872.) Likewise they may be used by defendant in resisting the application. (Id. Sec. 875.) In the latter case oral evidence may also be resorted to by both parties, but the answer, if verified, has the effect only of an affidavit. (Id. 877.) It does not follow, however, that the ordinary rules of evidence are not to‘ be observed in the use of such affidavits. It was said in Thompson v. Ocean City Railroad Co. (N. J. Ch.), 37 Atl. 129: “It would seem that the same rule must be applied to distinguish between testimony that is admissible and testimony that is nonevidential, whether such testimony is found in affidavits to be used as a ground for obtaining an injunction, or the testimony is produced in open court by the examination of witnesses to support any litigated fact.” In Bennett Bros. Co. v. Congdon, 20 Mont. 208, 50 Pac. 556, this court, speaking through Mr. Justice Hunt, said: “A court is sometimes called upon to grant a temporary restraining order to show cause, upon papers or testimony which at first examination appear to be sufficient, yet afterwards are-held not to be. In certain instances, haste in issuing a restraining order is necessary to prevent the doing of an act which, if done, would apparently work irreparable injury to another. A judge, under such circumstances, must do the best he can,
3. The defendant offered also the pleadings, judgment and findings in a cause designated on the district court calendar as No. 5,050, wherein the plaintiff in this cause was plaintiff, and the Comanche Mining Company and all the persons named as defendants in cause No. 9,081, supra, except Upton, were named as defendants, besides certain other parties alleged to be interested in the Comanche claim as privies of the other defendants. This suit was begun on March 21, 1894, and the record was offered for the purpose of showing that it was sought by plaintiff therein to obtain a decree declaring tbe defendants trustees of the legal title of an undivided one- fourth interest in the Comanche claim, for the use and benefit of plaintiff, upon the same facts which are alleged in the pleadings in this cause. There were included in the same offer the original complaint, demurrer, application for injunction, order denying the same, and final judgment on demurrer in another cause; numbered 8,304, wherein the plaintiff herein was plaintiff, and the defendant herein was named as defendant. In that cause a judgment was sought decreeing the plaintiff to.be the owner of the same undivided one-fourth interest in the Comanche claim involved in this cause and in Nx 5,050, supra. This second record was offered for the purpose of showing this fact, and that, basing his right of recovery upon the same facts alleged
This question was agitated between the plaintiff and the grantors of the defendant. It was adjudged in favor of the latter upon two distinct grounds, either of which, so long as the judgment stands, is conclusive against the claim of the plaintiff, without regard to the character of the Grand Prize deed; for, if the judgment should finally be affirmed, it would forever preclude the plaintiff from obtaining a reformation of that- deed, whether it was executed under a misapprehension by Upton or not. The adjudication that the Grand Prize location was abandoned because the ground co.vered by it was already covered by the Comanche, a valid location under which Upton and his associates obtained title, was necessarily an adjudication that none of them obtained any title under the Grand Prize location. This is binding upon the parities to' that judgment, as well as upon their privies. The defendant, so long as the judgment stands, could not be heard to say that it obtained any title under it; neither should the plaintiff, who tendered the issue, and after it had been determined in his favor, be heard to assert that it stands as an impediment to his rights, which the court should remove by a separate decree. If that judgment were affirmed, and were properly pleaded as a bar to this action, the court would be compelled to hold it conclusive upon the plaintiff. It meets all the requirements of the statute (Code of Civil
The record was admissible upon other grounds. It was contended at the hearing that the injunction should not issue because, whatever ultimate right the plaintiff might -finally be found to have, he had failed to apply promptly for relief, and that his own laches precluded any relief by way of preliminary injunction. Had the evidence been admitted, it would have appeared from it and other facte submitted that though the Grand Prize deed had been in existence since 1885, and though, at the trial of cause 5,050 in the district court, Upton was confronted with this deed, and interrogated fully about it, and though the removal of ores from the Comanche claim had been going on for at least three years at the time this application was made, noi claim was ever made by him or the plaintiff until the bringing of this suit, in February, 1901, that the deed was fraudulent or was executed by mistake. It is of some significance, also, that the deed was an important element in controversy at the trial of that cause, and yet no mention was made of the mistake in its- execution in 1885. These facts were proper to be considered, with the other facte submitted, in determining whether the plaintiff had slept upon his rights and was not entitled to preliminary relief.
The affidavit of Evans is made upon knowledge. It served to render clear the identification of the parties in the various suits referred to-, and also the subject-matter involved therein. On this theory, it should have been admitted and considered.
The order of the district court is reversed, and the cause is
Reversed and remanded.
Concurrence Opinion
I concur.
I concur in tbe foregoing opinion, except tbe paragraph with reference to tbe admissibility of tbe record in cause 8,304. As to tbe views therein stated, I express no opinion.