Kelley v. Boettcher

• Decision Date: 15 September 1897
• Docket Number: 870-872.
• Citation: 82 F. 794
• Parties: KELLEY et al. V. BOETTCHER et al. CURRAN et al V. CAMPION et al. DONOVAN V. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

82 F. 794

KELLEY et al. V. BOETTCHER et al. CURRAN et al V. CAMPION et al. DONOVAN V. SAME.

Nos. 870-872.

United States Court of Appeals, Eighth Circuit.

September 15, 1897

Charles Cavender and Charles J. Hughes, Jr., for the motion.

T. A Green and E. B. Green, opposed.

This was a bill in equity by Thomas D. Kelley, Margaret O. Kelley Michael P. Kelley, and Annie B. Kelley against Charles Boettcher, John F. Campion, A. V. Hunter, A. R. Meyer William Boyd Paige, Max Boehmer, and the Ibex Mining Company. Demurrers to the original and an amended bill were sustained by the court below, and, complainants declining to amend further, a decree was entered for defendants. From this decree the present appeal was taken. The cause was heard upon a motion to strike the brief of Mr. T. A. Green from the record.

Before BREWER, Circuit Justice, and SANBORN and THAYER, Circuit Judges.

BREWER Circuit Justice.

A motion has been made to strike form the files the brief of appellants, signed by T. A. Green as solicitor, and affirm the decree. The ground of the motion is, in general terms the irrelevant, scandalous, and offensive matter with which that brief is filled. The record discloses that appellants, as plaintiffs, on June 19, 1895, by T. A. Green, their solicitor, filed a bill in equity in the circuit court, seeking to set aside a deed to a one-sixth interest in the Little Johnny lode mining claim. This deed was charged to have been executed on January 16, 1893, and it was claimed that the execution thereof had been fraudulently obtained. Attached to and as a part of the bill were 72 interrogatories directed to one of the defendants, 47 to another, 72 to a third, and 20 to a fourth. The bill having been dismissed by complainants as to certain other defendants, the interrogatories as to them are not copied into the record before us, but it is stated that there were 49 typewritten pages of such interrogatories. With these interrogatories left out, the bill and remaining interrogatories fill 42 pages of the printed record. To this bill the defendants severally, on August 31 and October 5, 1895, demurred. The demurrers were, after argument before Judge Riner, and on January 30, 1896, sustained, and leave given to file an amended bill within 10 days. On February 5, 1896, amendments were filed, and to the bill as thus amended, after a motion to strike out had been overruled, a demurrer was, on May 4, 1896, filed, which, after argument, was sustained by Judge Hallett, and, the plaintiffs declining to further amend, a decree was entered on July 13, 1896, in favor of the defendants. From this decree an appeal was on the same day asked and allowed.

From the foregoing record it appears that there was no unreasonable delay on the part of either Judge Riner or Judge Hallett in deciding the questions raised by the demurrers, nor any attempt to interfere with the right of appeal. The order sustaining the demurrer to the original bill gave leave to file an amended bill. No conditions or terms were placed in this order, yet the amended bill contained two or three pages of matter like the following:

'Your orators and oratrices again most earnestly protest against this honorable court violating all rules, and especially the decisions of the supreme court of the United States, which complainants are advised and believe are binding and obligatory upon this honorable court, by compelling these complainants or their solicitor to violate all rules of pleading in order to prevent this honorable court, in violation of all law and all precedent, from sustaining demurrers to complainants' bill of complaint, and requiring complainants' solicitor to furnish affidavits of all of the facts and circumstances connected with the discovery of the facts constituting the fraud alleged in this case by complainants, and that, too even when defendants' demurrer to complainants' bill of complaint is a solemn admission of all of the material facts and allegations contained in said bill; and your orators and oratrices most respectfully and earnestly insist that this honorable court should consider and determine all questions raised by demurrers in accordance with the decisions of the supreme court of the United States and of all precedent in all courts of equity, both federal and state, throughout the whole United States, as well as in the chancery courts of England; and complainants most earnestly and respectfully protest again against

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