Elder v. Richmond Gold & Silver Min. Co., 183.

• Decision Date: 16 October 1893
• Docket Number: 183.
• Citation: 58 F. 536
• Parties: ELDER v. RICHMOND GOLD & SILVER MIN. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F. 536

ELDER v. RICHMOND GOLD & SILVER MIN. CO.

No. 183.

United States Court of Appeals, Eighth Circuit.

October 16, 1893

James B. Belford and George R. Elder, for appellant.

Dexter T. Sapp, for appellee.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

CALDWELL Circuit Judge.

This was a bill in equity filed by the Richmond Gold & Silver Mining Company, the appellee, against George W. Elder, the appellant, to remove a cloud from the appellee's title to parts of mining claims situated in Gunnison county, Colo described as follows, namely: An undivided one-third of the Sleeping Pet, an undivided three-fourths of the Mammoth lode an undivided three-fourths of the Eastman lode, an undivided three-fourths of the Topeka lode, an undivided three-fourths of the Little Minnie lode, an undivided three-fourths of the Gray Copper lode, and an undivided three-fourths of the Silver Gem lode. The bill sets up two independent sources of title in the appellee to the property,--one by purchase from the patentees of the United States and their grantees, and another afterwards acquired by patents from the United States to the appellee issued in 1885 for the property, founded on a relocation of the mining claims. In the view we take of the case, it will not be necessary to consider this latter title.

The bill sets out the appellee's chain of title, from which it appears that one Albert M. Eastman once owned the property, and the conveyances from him constitute a necessary link in appellee's chain of title. The bill alleges, and the answer admits, that the appellant's claim of title rests on a judgment recovered by Billin, Huston & Co. against Albert M. Eastman and Benjamin H. Cramp on the 18th day of November, 1885, in the district court of Lake county, Colo., in a suit begun by attachment on the 21st day of October, 1881, and in which the writ of attachment was on the 27th day of October, 1881, levied on the property in controversy as the property of Albert M. Eastman, and which was afterwards sold as his property under a special execution issued on the judgment. The bill alleges that the court was without jurisdiction to render this judgment, and that the same, and the proceedings thereunder, are void for that reason. The appellant, in his answer, asserts the validity of the judgment and proceedings, and avers that under them he acquired Eastman's title to the property. and that the title so acquired has relation to a date prior to the conveyance of the property by Eastman to the appellee or to its grantors; the attachment having been levied October 27 1881, and the conveyances from Eastman, under which the appellee claims title, having been made in July, 1882.

The facts necessary to be considered in determining the validity of the judgment under which the appellant claims the property are as follows: On the 21st of October, 1881, Billin, Huston & Co. commenced a suit by attachment against Albert M. Eastman and Benjamin H. Cramp in the district court of Lake county, Colo., to recover more than $10,000 alleged to be due to the plaintiffs from the defendants. The writ of attachment issued in the case was duly levied on the mining claims in controversy, as the property of Albert M. Eastman, on the 27th of October, 1881. The defendant Eastman appeared to this suit on the 14th day of April, 1882, and filed his answer, denying that the defendants executed the note sued on, and pleading want of consideration. No replication was filed to this answer, as required by the Colorado Code of Practice; and on the 10th of June, 1882, and during the same term, the court rendered the following judgment in the case:

'It appearing to the court that the plaintiffs herein have failed to file a replication or demurrer to the answer of said defendant, although the time for them in which so to do has long since expired, it is ordered that the default of said plaintiff, for so failing to reply to said defendant's answer, be, and the same is hereby, duly entered according to law; and, on motion of said defendant for judgment to be entered on said default, it is considered, ordered, and adjudged by the court that the said defendant, Alfred M. Eastman, go hence without day, and that he have and recover of and from said plaintiffs all his costs in this action expended, and that execution issue therefor.'

On the 5th of August, 1882, Billin, Huston & Co. filed their motion, supported by affidavit, to set aside this judgment, which motion was pending until the 20th of March, 1883, when it was denied, to which ruling the plaintiffs excepted, and filed a bill of exceptions, but never sued out a writ of error, or otherwise prosecuted an appeal. On the 26th of May, 1885, the court, on motion of Billin, Huston & Co., set aside the judgment rendered in favor of Eastman on the 10th day of June, 1882, and on the 10th day of November, 1885, rendered a judgment in the case against Eastman for $15,385.53, and sustained the attachment. The appellant's title to the property rests on a sale thereof on a special execution issued on this judgment.

The statute of Colorado of 1883 (Gen. St. c. 66, § 12) provides that bills for relief on the ground of fraud shall be filed within three years after the discovery of the fraud, and the appellant pleads this statute in bar. But this is not a bill for relief on the ground of statute in bar. But this is not a bill for relief on the ground of fraud, within the meaning of that statute. The bill challenges the jurisdiction of the court to render the judgment under which the appellant claims title. The question it presents is one of law, and not one of fraud in fact, which is not charged. Nor does section 401 of the Code of Colorado, prescribing a limitation of three years for suing out writs of error, have any application to the case.

We come now to the consideration of the question whether the court had jurisdiction to render the...