Bunker Hill & Sullivan Mining & Concentrating Co. v. Shoshone Min. Co.

• Decision Date: 06 May 1901
• Docket Number: 666.
• Citation: 109 F. 504
• Parties: BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO. v. SHOSHONE MIN. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

109 F. 504

BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO. v. SHOSHONE MIN. CO.

No. 666.

United States Court of Appeals, Ninth Circuit.

May 6, 1901

As a plea in bar to the complaint of plaintiff, the defendant says: 'That at a term of the United States circuit court for the district of Idaho, Northern division, which was held in the year 1895, the predecessors in interest, to wit, Royal J. Rutter and F. W. Bradley, under whom the above-named plaintiff claims in the above-entitled action, exhibited their bill of complaint in this honorable court against this defendant, claiming to be the owners of the Kirby fraction lode mining claim, the same property mentioned and described in the plaintiff's bill of complaint in this action, and alleging that this defendant claimed an estate or interest therein adverse to the said Royal J. Rutter and F. W Bradley, and to their title to the said Kirby fraction lode mining claim; and that this defendant had applied for a United States patent upon the Shoshone lode mining claim which overlapped and conflicted with the said Kirby fraction lode mining claim, and that the said Royal J. Rutter and F W. Bradley had filed an adverse in the United States land office against the said application for patent so made by this defendant as aforesaid, and that the said aforementioned suit was brought by the said Royal J. Rutter and F. W Bradley against this defendant in support of said adverse claim. This defendant thereupon filed its answer, denying that the said Royal J. Rutter and F. W. Bradley were the owners of the Kerby fraction lode mining claim so claimed by them as aforesaid, or that the said Kirby fraction lode mining claim had any legal existence, or was a valid lode mining claim, and alleging that this defendant, the Shoshone Mining Company, was the owner of the land and premises then claimed by the said Royal J. Rutter and F. W. Bradley as the Kirby fraction lode mining claim, and that the said land and premises were a part of the said Shoshone mining claim, the property of this defendant. To this answer the said Rutter and Bradley filed their replication, and the cause was at issue in the aforesaid court. That, prior to the filing of the said answer by this defendant, the defendant had filed a demurrer to the bill of complaint so filed by the said Rutter and Bradley as aforesaid, alleging, among other grounds of demurrer, that it did not appear from the said bill of complaint that the cause was one of which the said court had jurisdiction, which said demurrer was overruled by the said court, and proper bill of exceptions to the ruling of the court was settled. That thereupon the cause proceeded to trial upon the issues made by the complaint, answer, and replication aforesaid, in which said suit a final judgment had been entered in favor of this defendant, and against the said Royal J. Rutter and F. W. Bradley, dismissing said action, because the said circuit court had no jurisdiction thereof. That said judgment is final, and no appeal may be had therefrom. That by virtue of the law no other suit may be maintained against this defendant by or on behalf of any person claiming under the title of the Kirby fraction lode mining claim. That the said final judgment so entered as aforesaid is a final determination, and conclusive of, the right to the land and premises described in the complaint in this action as the Kirby fraction lode mining claim, as between the plaintiff in this action and this defendant. * * * This defendant further says that at a term of the district court of the First judicial district of the state of Idaho, in and for Shoshone county, which was held in the year 1896, the said present defendant commenced a suit by filing a complaint in the said court against Royal J. Rutter and F. W. Bradley, the predecessors in interest as the owners or claimants of the Kirby fraction lode mining claim, mentioned and described in the complaint in this action, to which complaint the said Royal J. Rutter and F. W. Bradley filed their answer, and issue was joined by said complaint and answer between this defendant and the said Royal J. Rutter and F. W. Bradley. That said cause was removed by the said defendants, Rutter and Bradley, to the United States circuit court for the district of Idaho, Northern division, on the grounds that the said cause was one of which the said circuit court had jurisdiction. That the said bond proceedings had for that purpose has been remanded by the said United States circuit court to the said district court of the First judicial district of the state of Idaho, in and for Shoshone county, and is now pending and undetermined therein. That said defendant claimed the land and premises in said last-mentioned action as a part of the Ibex lode mining claim, of which this defendant is, and at all times was, the owner. That the said Royal J. Rutter and F. W. Bradley claimed that portion of the Kirby fraction lode mining claim which conflicted with the said Ibex lode mining claims is described by metes and bounds as follows: * * * That both the said Shoshone lode mining claim and the Ibex lode mining claim are owned by this defendant, the Shoshone mining company. That the said last-named cause is now pending and undetermined, and is of record in the said district court of the First judicial district of the state of Idaho in and for Shoshone county,-- all of which several matters and things this defendant doth aver, and pleads the said former bill, demurrer, answer, replication, judgment, and several proceedings in the first of the above mentioned and set forth actions in bar to the said plaintiff's present bill, and pleads the said former complaint, answer, and several proceedings in the said second above mentioned and described actions in bar to the said plaintiff's present bill, and demands judgment of this honorable court whether it shall be put to make any further or other answer thereto, and prays to be hence dismissed, with its costs and charges in this behalf sustained.'

Curtis H. Lindley, John R. McBride, and M. A. Folsom, for appellant.

W. B. Heyburn and E. M. Heyburn, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge (after stating the facts as above.

This is a suit to quiet plaintiff's title (appellant herein) to a lode mining claim situated in Shoshone county, Idaho, known as and called the 'Kirby Fraction.' The bill of complaint is in the usual form in actions of this character. The suit does not purport to be brought, nor is it instituted, in support of any adverse claim filed in the land office in any patent proceeding. The bill of complaint herein shows jurisdiction of the court by reason of diversity of citizenship of the contending parties, the jurisdictional value being alleged. To plaintiff's bill of complaint the defendant (appellee herein) interposed a plea in bar, which is set forth at length in the statement of facts. To this plea no answer or demurrer as to its sufficiency was filed. The plea was set for trial, and after argument thereon the court sustained the plea, and dismissed the suit. Hence this appeal.

It is assigned as error that 'the trial court erred in sustaining the plea of respondent to complainant's complaint, and in ordering the said complaint to be dismissed, because the said plea failed to state facts sufficient to constitute a valid defense to complainant's complaint.'

1. It will be noticed that there are two pleas set up: (1) The bar of the judgment in the United States court in Rutter et al. v. Shoshone Min. Co.; and (2) the pendency of the action of Shoshone Min. Co. v. Rutter et al. in the state court. No leave was asked of the court to allow double pleas. It is therefore contended by appellant that the pleas in bar should have been overruled on account of duplicity and multifariousness. The rule is well settled that but one plea can be set up in an equity suit without express leave of the court. As was said by the court in McCloskey v. Barr (C.C.) 38 F. 165, 168:

'It is not usual, or in conformity with proper practice, for a defendant, without previous special leave of the court, to file several separate pleas, or to present several distinct and independent defenses, in one plea to the suit, for the reason that the defense proper for a plea is such as reduces the cause or some distinct part of it to a single point or issue; the object of the plea being to save litigants the expense and trouble of going into the evidence and a trial at large.'

But inasmuch as there were no exceptions filed to these pleas on the grounds here stated, and taking into consideration the complex character of the pleas, in that both relate to the same mining ground,...