Caledonia Gold Mining Co. v. Noonan

• Decision Date: 28 October 1882
• Citation: 14 N.W. 426,3 Dak. 189
• Court: South Dakota Supreme Court
• Parties: Caledonia Gold Mining Co. v. Noonan and another.

14 N.W. 426

3 Dak. 189

Caledonia Gold Mining Co.

v.Noonan and another.^a2

Supreme Court of the Territory of Dakota.

Filed October 28, 1882.

Appeal from Lawrence county.McLaughlin & Steele, for appellants. W. H. Clagett and T. L. Skinner, for respondents.

MOODY, J.

This action was brought to determine conflicting claims to mining ground situated in Whitewood quartz mining district, Lawrence county. The plaintiff claims by virtue of the Caledonia location, and the defendants by a location called the Bobtail. The defendant Noonan, claiming to be the owner of the Bobtail, applied for a patent, and pending that application, after making the requisite protest to stay the issuance of patent, the plaintiff brings this action. The trial was to the court without a jury, judgment was rendered for the plaintiff, and the defendants appeal. Ninety-eight assignments of error appear in defendants' brief, being the same as those stated in the motion for a new trial. All of which that is important should be now noticed can be classified and disposed of in four general propositions. The first relates to the manner of making an amendment to the complaint and making the defendant Mahan a party thereto during the trial; the second to the admission of certain secondary evidence and depositions; the third to the admission of evidence of acts of location performed and declarations made regarding the disputed claims prior to the twenty-eighth day of February, 1877, and while they were still covered by the Great Sioux Indian reservation; and the fourth to the alleged insufficiency of the evidence to sustain the findings and decision of the district court.

Notwithstanding the defendant Noonan, when he applied for the patent, claimed to be the sole owner of the Bobtail and to take the title to himself, and that the action was brought upon that theory, it became apparent during the progress of the trial that his grantor, Thomas F. Mahan, who claimed still to have an interest in the claim, was a proper if not a necessary party to a complete determination and settlement of the question involved in the controversy, and thereupon, by consent of all the parties, the court made an order making Mahan a party defendant, and the following minute was entered in the journal after the title: “Now, on this fifteenth day of July, A. D. 1880, the trial of this cause resumed. By consent of all parties Thomas F. Mahan is made a party defendant in this action. Counsel for defendant appear and answer instanter for him any amendments to pleadings required during the pendency of this action, or at its conclusion.” The authority to cause such an amendment to be made cannot be doubted. Section 142, Code of Civil Procedure, among other things, provides: “The court may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process, or proceeding by adding or striking out the name of any party,” etc.

Mahan was in court as a witness, and was assisting in the conduct of the defense; and upon such consent order being made the attorneys for the other defendant of record at once appeared for him, the understanding being had that thereafter, and before judgment, the pleadings should be arranged accordingly. Thereupon the trial proceeded with the two parties defendant, they joining in all the subsequent proceedings, including the motion for a new trial, objections, exceptions, etc., and they join in this appeal. Before judgment, and when the plaintiff's counsel came to perfect the record as to Mahan, instead of rewriting the complaint and inserting the name of Mahan where it would properly come, as it is the regular and much the better practice, they made and served upon defendants' counsel, and filed with the judgment roll, an amendment to the complaint, in these words, after the title:

“Now comes the above-named plaintiff, and in pursuance and by authority of the court hereinbefore made on the fifteenth day of July, 1880, making the said Thomas F. Mahan a defendant in this action, amends its amended and substituted complaint, which was herein filed November 6, 1879, by inserting therein the name of the said Thomas F. Mahan as a defendant, and by inserting in and adding to said complaint, immediately after the subdivision thereof numbered 9, and before the prayer thereof, the following allegation, to-wit:

‘10. And plaintiff further avers that the defendant Thomas F. Mahan has, or claims to have, some right, title, or interest adverse to plaintiff in or to that portion of the said Caledonla lode claim above described by survey; that said claim of said defendant Mahan is without foundation or right as against the plaintiff; but said Mahan persists in the same, and makes said claim, as plaintiff is informed and believes, under the said alleged and pretended location of the said alleged Bobtail lode claim above described as co-owner with or claiming under the same right as defendant Noonan, as above mentioned, and that said claim of said Mahan casts a cloud upon plaintiff's title to said portion of said Caledonia lode above described; and plaintiff therefore makes said Mahan a defendant in this action, and asks the same judgment, decree, and relief against him as hereinafter prayed against said defendant Noonan.’

“Clagett & Dixon, Attorneys for Plaintiff.”

No objection was made in the district court to this mode of amending a pleading, nor was the attention of that court in any way called to it.

Upon this appeal the objection for the first time is made. It is alleged to be an irregularity, and also that this amendment to the complaint is an amended complaint and takes the place of the original; the argument being that as it is (as assumed) an amended complaint, and as it does not in and of itself state a cause of action, the judgment cannot be sustained. It is quite true that an amended pleading takes the place of the pleading amended, and that the original drops out of and ceases to be a part of the record, and it is also true that the mode of making amendments of pleadings recognized by our practice is by rewriting the pleading, leaving out such allegations and inserting such other allegations as may be desired, so that all the parts of the pleading shall be in one instrument or paper and be complete in itself. But this subsequent writing does not purport to be an amended complaint; only an amendment to the complaint. At the worst it is but an irregularity, which cannot be taken advantage of for the first time upon appeal.

No doubt if the attention of the district court had been called to it, the regular and proper practice would have been enforced and the plaintiff compelled to rewrite the complaint, inserting the name of Thomas F. Mahan in its proper place. Even in this court, if it was necessary, it would be within the power of the court to cause so technical an objection to be obviated by having both writings incorporated together, as it would involve nothing greater than the performance of some clerical labor by the plaintiff's counsel or other person, and would not in any way affect or change the rights of the parties. But it is not necessary. The complaint, the order, the minute entered upon the journal, the amendment, and the subsequent proceedings, make the record complete as to Mahan as well as Noonan, and they cannot be heard now to complain of the form of proceedings which do not affect their substantial rights. We are constrained to this view by the express command of the statute. Section 145 of the Code of Civil Procedure is as follows: “The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”

But it is said Mahan has not answered the complaint, and upon the argument it seemed to be cherished as a merit that his counsel had advised him not to answer. It is only his fault if he has not, and he may now be liable to the consequences of a default; but with the agreement on the trial the plaintiff seems to have complied, as the action has been tried and determined, and all proceedings taken as though he had answered in full. Certainly the adverse party is in no way subject to censure for his not answering. He had the fullest opportunity to do so, and had stipulated to answer at once. More than likely the answer of his co-owner and co-defendant was deemed sufficient, as it not only puts in issue the plaintiff's title, but sets up title in both Noonan and Mahan,-all that Mahan could possibly plead for himself under the proofs. In any event, it is not in courts of justice regarded as meritorious for a party to seek advantage by reason of his own laches. We might have dismissed this point with much less consideration, as no mention is made of it either in the motion for a new trial or anywhere in the bill of exceptions.

Upon the trial the plaintiff, to prove its corporate existence, offered in evidence, in addition to the proofs of use, a copy of its articles of incorporation, certified by the county clerk of the city and county of San Francisco, the place of its principal business, under his seal of office, to which was appended a certificate of the secretary of state of the state of California, under the great seal of the state, both certificates reciting that it is a copy of the original now on file in their respective offices, and also a similar copy certified to by the secretary of the territory as a copy of the articles on file in his office, with the great seal of the territory attached. In connection with these, the laws of the state of California, relating to the organization of incorporations, were produced and offered in evidence without objection, by which laws it appears that such articles are required to be filed-one in the clerk's office of the county in which the principal...