Empire State-Idaho Mining & Developing Co. v. Hanley

• Citation: 136 F. 99
• Decision Date: 06 February 1905
• Docket Number: 1,083.
• Parties: EMPIRE STATE-IDAHO MINING & DEVELOPING CO. et al. v. HANLEY.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

136 F. 99

EMPIRE STATE-IDAHO MINING & DEVELOPING CO. et al. v. HANLEY.

No. 1,083.

United States Court of Appeals, Ninth Circuit.

February 6, 1905

Geo Turner, F. T. Post, and W. B. Heyburn, for appellants.

M. A Folsom, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

On November 9, 1903, this court rendered a decree in the above-entitled cause, remanding the same to the court below with directions to modify its final decree in certain respects specified, and directing it to take, if necessary further proof as to the time when the defendants to the suit the appellants herein, ceased to exclude the appellee from the mine in question, 'and gave or offered to him or his representatives free access thereto and free inspection thereof. ' In accordance with that decree, the cause was remanded to the Circuit Court. That court appointed a special examiner to take such testimony upon the question so suggested, and return the same to the court together with his opinion thereon, his opinion to be advisory only. Testimony was accordingly taken. Thereupon a motion and petition were served and filed by the appellee for judgment against the Empire State-Idaho Mining & Developing Company and the surety upon its supersedeas bond, the American Bonding Company. The surety entered a special appearance, and objected to the rendition of a judgment against it upon the ground that it had never been served with any process or rule or order of the court, and had not had its day in court, and that the court was without jurisdiction to render .a judgment against it. The Circuit Court found from the evidence that the appellee was excluded from the mine up to January 1, 1902, and that thereafter he was not excluded, and it accordingly entered a decree against the mining company for $260,672.43 and a decree against the American Bonding Company for $170,343.60, the amount of the decree from which the former appeal was taken.

The assignments of error present some questions which have already been adjudicated by this court, and which will therefore not be here reconsidered. The questions that are new are, first, did the trial court err in holding that the appellee was excluded from the mining property up to January 1, 1902? And, second, was that court without jurisdiction to render a judgment against the American Bonding Company? As to the exclusion of the appellee from the mining property, the appellants contend that he was not in fact excluded therefrom at any time, but that, if there were at any time theoretical exclusion, it ceased on May 6, 1901. The date so mentioned is the date of the decree of this court in the case of Hanley v. Sweeny, 109 F. 712, 48 C.C.A. 612, in which it was held that the appellee herein was the owner of an undivided one-eighth of the Skookum Mine, and that his conveyance of that interest, had been fraudulently obtained by the opposing parties in that suit. The present suit was brought by the appellee herein to obtain an injunction against the further operation of the mine by the appellant the Empire State-Idaho Mining & Developing Company and to obtain an accounting of the antecedent working of the ground by said appellant. Upon the appeal from the decree of the Circuit Court this court, in Sweeney v. Hanley, 126 F. 102, 61 C.C.A. 153, said: 'The case shows that from the beginning of the mining of the ore in controversy to at least the time of the decision of this court on May 6, 1901, in the case of Hanley v. Sweeny et al., 109 F. 712, 48 C.C.A. 612, the defendants to the suit claimed Hanley's interest in the mine in question by virtue of the deed here adjudged never to have been delivered, but to have been fraudulently gotten possession of by Sweeny and Clark, during all of which period they unlawfully and fraudulently excluded Hanley from the mine;' and this court in its opinion further said that the decree of the Circuit Court 'must be so modified as to award the complainant, Hanley, judgment for one-eighth of the gross value at the mine of all ore extracted by the Empire State-Idaho Mining & Developing Company therefrom up to the time the defendants to the suit ceased to exclude him from the mine, and to give him or his representatives free access thereto and inspection thereof, and thereafter for one-eighth of the net value of all ore so mined by the defendant company from the mine or mining claim in question, together with legal interest,' etc. It thus appears that it is settled by the adjudication of this court that the exclusion of the appellee from the mine continued at least until May 6, 1901. The fact that the views of the court so expressed in the opinion are not contained in the mandate which issued to the lower court renders them no less conclusive as the law of the case. Thompson v. Maxwell, 168 U.S. 451, 18 Sup.Ct. 121, 42 L.Ed. 539.

The trial court found that the exclusion of the appellee continued until January 1, 1902. That date was fixed as the date of the termination of the exclusion for the reason that it was shown that at that time a limited permission, through an order of the court, was given to the appellee's engineers and his watchman to enter the mining ground. The evidence that the exclusion continued until that date consists in the following facts: The decree of this court of May 6, 1901, was not complied with by the appellees in that suit. They filed in this court a petition for rehearing, in which they reasserted their denial of Hanley's right to the property or to relief in equity. After the denial of that petition they made an application to the Supreme Court for a writ of certiorari to review the judgment of this court. That application was pending until January 13, 1902. In December, 1901, the appellee herein presented an application to the Circuit Court for an injunction and an order of reference, supported by his affidavit, in which he deposed that the defendant company had constantly refused to permit him to enter the underground workings of said property for the purpose of working said property or inspecting the same, and that it had excluded him from entering said property for any purpose whatever. The Empire State-Idaho Mining & Developing Company, in opposition to the motion and application, replied to that affidavit, but did not deny the alleged fact of the exclusion of the appellee. Upon the hearing on that motion and application counsel for said mining company, in the presence of the general manager and other officers thereof, vigorously objected to an order of the court permitting the appellee to enter the mine, upon the ground that he had no right therein. Later, when the appellee presented to the Circuit Court his petition in said case for the appointment of a receiver and an injunction, together with his affidavit in support thereof, the resident manager of the mining company on February 6, 1902, presented his counter affidavit in opposition thereto, in which he admitted that said mining company 'and its officers and agents have refused to permit the said Hanley to enter its underground workings; that it has no underground workings in which the said Hanley has any interest, or into which he is entitled to enter; deny that the said Hanley, for the purpose of working the said Skookum mine, or inspecting the same, or...