Clarke v. Boysen

• Decision Date: 18 November 1922
• Docket Number: 5909.
• Citation: 285 F. 122
• Parties: CLARKE v. BOYSEN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

285 F. 122

CLARKE v. BOYSEN et al.

No. 5909.

United States Court of Appeals, Eighth Circuit.

November 18, 1922

Malcolm Lindsey, of Denver, Colo. (Elijah N. Zoline, of New York City, on the brief), for appellant.

D. A Haggard, of Cheyenne, Wyo. (Haggard & O'Mahoney, of Cheyenne, Wyo., on the brief), for appellees.

Before LEWIS and KENYON, Circuit Judges, and YOUMANS, District Judge.

YOUMANS District Judge.

This is an appeal from an order of the United States District Court of Wyoming denying to appellant permission to file a petition for an intervention in a case which as originally brought was styled as follows: William J. Broatch, Harry T. Clarke, Jacob E. House, Robert C. Wertz, Thomas Coughlan, Charles J Woodhurst and John T. Clarke, Complainants, v. Asmus Boysen and the Asmus Boysen Mining Company, a corporation, Adam Morrell, and Joseph Weis, Defendants. The order of the court denying permission to file the petition was as follows:

'On this 9th day of December, A.D. 1920, this matter coming on for hearing on the motion of Maurice G. Clarke for permission to file a petition for intervention herein, and the court having read the petition for intervention and having fully considered said motion, it is ordered that said motion be denied, to which ruling of the court the said Maurice G. Clarke excepts.'

The petition for intervention, omitting the formal parts, reads as follows:

'Your petitioner, Maurice G. Clarke, a citizen and a resident of the city of Okmulgee, in the state of Oklahoma, respectfully represents: That on the 9th day of July, 1906, William J. Broatch, Harry F. Clarke, Jacob E. House, Robert C. Wertz, Thomas Coughlan, Charles J. Woodhurst, and John T. Clarke commenced an action against Asmus Boysen and the Asmus Boysen Mining Company (a corporation), Adam Morrell, and Joseph Weis to establish title to certain lands described as follows: * * * That thereupon some of the defendants duly answered said bill of complaint, which answers are on file in this court; reference thereto being had. That upon a final hearing of said cause in this court, the said bill of complaint was dismissed. That on appeal from said decree to the United States Circuit Court of Appeals for the Eighth Circuit said decree was duly reversed, with certain directions, as will more fully appear from the mandate of the said Circuit Court of Appeals, on file in this court, reference thereto being had. That thereupon an accounting was duly had and a decree entered thereon, which decree was affirmed by the said United States Circuit Court of Appeals with certain modifications, all of which will more fully appear from the mandate of the said Circuit Court of Appeals and subsequent proceedings had in this court, reference thereto being had. That thereupon one John T. Clarke applied to this court for leave to file certain supplemental complaints. That certain proceedings were had in this court, resulting in a dismissal of the suit as to certain parts of the subject-matter, as will more fully appear from the record on file in this court, reference thereto being had. That thereupon an appeal was duly taken by the said John T. Clarke to the United States Circuit Court of Appeals from the order dismissing the suit as to certain parts of the subject-matter of the suit, and from certain orders denying leave to file a second supplemental bill, etc., as will more fully appear from the record on file in this court, reference thereto being had. That on appeal from the said decree of this court to the said United States Circuit Court of Appeals the said orders were duly reversed with certain directions, as will more fully appear from the mandate of the United States Circuit Court of Appeals on file in this court, reference thereto being had in the same manner as if the mandate were duly incorporated herein.

'2. Your petitioner further states that Joseph Weis, one of the defendants to the original action and originally an owner of one-sixteenth of all rights under the agreement referred to in the original bill of complaint herein, and who by reason of the fact that only six of his associates referred to in the original agreement have accepted the provisions thereof, is according to the decision of the United States Circuit Court of Appeals in this case, as reported under the title of Broatch et al. v. Boysen, 175 F. 702-710, 99 C.C.A. 278 (see opinion 175 F. 708, 99 C.C.A. 284, showing the acceptance of the agreement by said Joseph Weis), the owner of one-seventh of the lands which is the subject-matter of this suit, did on the 15th day of November, 1913, by an instrument in writing and for a valuable consideration, duly assign to your petitioner all his legal and equitable rights and interest in said original agreement to your petitioner, and your petitioner has accordingly duly succeeded to all the rights, titles, and interest of the said Joseph Weis.

'3. Your petitioner, therefore, having an interest in the subject-matter herein which is still in litigation and under consideration of this court, respectfully prays this honorable court that an order may be entered permitting him to intervene and assert his interest in this suit, in accordance with equity rule 37 (198 F. xxviii, 115 C.C.A. xxviii), promulgated by the United States Supreme Court, on November 4, 1912, such intervention to be in subordination to, and in recognition of, the propriety of the main proceeding, and that your petitioner may have such other and further relief in the premises as in equity he may be entitled to, and as this court may deem just and fit.'

The petition for intervention recites that upon a final hearing in the lower court the bill of complaint was dismissed and that on appeal that decree was reversed. The original decree of the lower court is not incorporated in the record. The petition for intervention, however, refers to the opinion of this court as reported in 175 F. 702, 99 C.C.A. 278. That opinion may therefore be referred to here. It was rendered on January 7, 1910. The suit was based upon a certain contract entered into the 1st day of April, 1899. The contract was entered into 'for the purpose of leasing certain lands on the Windriver and Shoshone Indian Reservation in the state of Wyoming of the said Indians and the United States government. ' Asmus Boysen procured certain leases. The suit was brought originally for the purpose of securing a decree to the effect that the contract constituted a partnership agreement by which the complainants in that suit were entitled to an interest in the leases secured by Asmus Boysen. All of the parties to the contract did not join as plaintiffs.

The original complaint contained the following allegation:

'That Adam Morrell, a citizen and resident of the county of Douglas, in the state of Nebraska, and Joseph Weis, a citizen and resident of the state of New York, and each out of the jurisdiction of this court, who are parties to the contract hereinafter set forth in this complaint, refuse and fail to become parties complainant to this bill of complaint, and therefore they are made defendants herein.'

The prayer of the bill is as follows:

'Your orators further pray that your honors may grant unto your orators a writ of subpoena of the United States of America issued out of and under the seal of this honorable court, directed to defendant Asmus Boysen and the Asmus Boysen Mining Company, Adam Morrell, and Joseph Weis, therein and thereby demanding said Asmus Boysen and the Asmus Boysen Mining Company, Adam Morrell, and Joseph Weis at a certain time, and under a certain penalty, therein to be named, personally to be and appear before this honorable court then and there to answer all, and singular (not under oath, answer under oath being hereby expressly waived) the matters aforesaid, and to stand and abide by and sustain such direction and decree as shall be made herein...