Frost v. Idaho Irr. Co., Ltd.

• Decision Date: 23 February 1911
• Citation: 19 Idaho 372,114 P. 38
• Parties: S. C. FROST et al., Respondents, v. IDAHO IRRIGATION COMPANY, LIMITED, et al., Appellants
• Court: Idaho Supreme Court

114 P. 38

19 Idaho 372

S. C. FROST et al., Respondents, v. IDAHO IRRIGATION COMPANY, LIMITED, et al., Appellants

Supreme Court of Idaho

February 23, 1911

ORDER BRINGING IN NEW DEFENDANTS - POWER OF COURT TO SET ASIDE-PARTIES-NECESSARY-INDISPENSABLE.

(Syllabus by the court.)

1. Under the provisions of Rev. Codes, sec. 4354, the trial court has no power or right to dismiss an action over the objection of a defendant, who has filed an answer and cross-complaint seeking affirmative relief, but is required to enter judgment upon the merits of the issue presented by the cross-complaint.

2. The district court has power and jurisdiction to set aside and vacate an order inadvertently made, bringing in new parties as defendants, and to strike from the files the answer and cross-complaint of such defendant, where no right has been acquired by such defendant except the right to file such answer.

3. In an action to adjudicate the priorities of appropriation of the waters of a stream, where there are a large number of plaintiffs and defendants, and much time has been consumed and large expense incurred in taking the testimony in said cause, and, after the close of such evidence and the decree is in preparation, the court makes an order requiring new parties to be brought in as defendants, and such defendants appear and file an answer and cross-complaint, and motion is made by other defendants to set aside and vacate the order of the court making such new defendant a party, and the court is of the opinion that the bringing in of such party would require a retrial of said cause, and put the plaintiffs and defendants to the expense of going over the ground which had already been gone over in the evidence, and that said order had been made inadvertently, it is not error to sustain the motion to set aside and vacate the same, and to strike the answer and cross-complaint of said defendant from the files.

4. In an action to determine the priority of rights of appropriation from a stream of water, all parties claiming right of appropriation should be made either parties plaintiff or defendant, but the failure to make all such parties who claim a right of appropriation parties to said suit will not affect the rights and interests as adjudicated between the parties to such action and determined by the court.

5. An appropriator of water from a stream is a proper party to a suit affecting the right of appropriation of the waters of such stream, but such person is not an indispensable party and a judgment rendered in said cause would be just as effective as to the rights and interest of all those who were parties to said action, as between themselves, and whose rights have been adjudicated, as though such other person had also been made a party.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. Alfred Budge, Judge.

An action to adjudicate the priorities of the waters of Big Wood river. From an order vacating an order to make additional defendants the said defendants appealed. Affirmed.

Judgment affirmed. Costs awarded to respondents.

N. M Ruick and Waldemar Van Cott, for Appellant Idaho Irr. Co.

"Plaintiff in an action will be precluded from dismissing his action on his own motion where an answer has been filed showing defendant to be entitled to and praying for affirmative relief. The consent of the adverse party is necessary in such case." (Hypotheek Bank v. Rauch, 5 Idaho 752 51 P. 764; 14 Cyc. 407.)

Under a statute of California identical with our own in all respects under consideration here (Cal. Code Civ. Proc., sec. 581), the supreme court of that state has uniformly held that the court has no authority to dismiss an action over the objection of a defendant who has filed an answer or cross-complaint seeking affirmative relief. (Rodgers v. Parker, 136 Cal. 315, 68 P. 975; Mott v. Mott, 82 Cal. 413, 22 P. 1140, 1142; Water Co. v. Allen, 132 Cal. 432, 64 P. 713.)

If the Idaho Irrigation Co. did not claim any rights in this case and was not a necessary party, then there might be a reason to dismiss the case; but when it comes in and makes a claim to the subject matter, then the court, of its own motion, must retain such party in the case, in order to adjudicate its rights, and so as finally to put an end to the litigation. (Bank of Hailey v. Bews, 3 Idaho 486, 31 P. 816.)

In the above case, this court considered the identical sec. 4113, and held that all persons must be made parties to the suit when that is necessary to make a complete determination of a controversy. (See, also, Frost v. Alturas Water Co., 11 Idaho 294, 81 P. 996.)

The purpose of the court is not only to simplify proceedings but to avoid, as far as may be, a multiplicity of suits. (Willman v. Friedman, 4 Idaho 209-213, 95 Am. St. 59, 38 P. 937; 15 Cyc. Pl. & Pr. 584-588; U. S. v. N. P. R. Co., 134 F. 715, 67 C. C. A. 269; Sherman v. Parish, 53 N.Y. 483, 490.)

Sullivan & Sullivan, Hawley, Puckett & Hawley and Paul S. Haddock, for Respondents.

If the Idaho Irrigation Co., Ltd., was claiming any of the identical water rights for the particular tracts of the plaintiffs or defendants, then it might be a necessary party, but they are simply claiming a separate and distinct water right of their own from a different date. True, it is from the same stream, but it is not necessary to determine its priority in order to have a complete determination between the parties to this action as to their water rights as between themselves. If this be true, then the appellant, although a proper party defendant, cannot demand recognition as an indispensable party. (15 Am. & Eng. Ency. P. & P. 610.)

When a contest can be settled without affecting rights of others, there is no ground or reason for bringing in any other parties. Nor is such procedure required by sec. 389, Cal. C. C. P. (same as our sec. 4113). (Lytle Creek Water Co. v. Perdew, 65 Cal. 455, 4 P. 426.)

The power of the court to set aside an order which has been made through inadvertence or mistake is too well established to require argument. (Hall v. Polack, 42 Cal. 218; Ex parte Hartman, 44 Cal. 32; Wiggin v. Superior Court, 68 Cal. 398, 9 P. 646; Baker v. Fireman's etc. Co., 73 Cal. 182, 14 P. 686; Wunderlin v. Cadogan, 75 Cal. 617, 17 P. 713; Kaufman v. Shain, 111 Cal. 16, 52 Am. St. 139, 43 P. 393; People v. Curtis, 113 Cal. 68, 45 P. 180; Servatius v. Pickel, 30 Wis. 507; State v. Bragg, 63 Mo.App. 22; Mudge v. Hull, 56 Kan. 314, 43 P. 242; Am. Hosiery Co. v. Riley, 12 Abb. N.C. (N. Y.) 329.)

Every court of superior jurisdiction has power to control its own orders and to direct where and under what conditions they shall be operative. (15 Ency. P. & P. 349; 29 Cyc. 1518.)

Orders are not regarded as res adjudicata with the same strictness as judgments. Accordingly, every order made in the progress of a cause may be rescinded or modified upon a proper case for such relief being made out. (15 Ency. P. & P. 350, 354.)

It is well settled that whatever can be done upon motion to the court may, by the court, upon further motion, be altered, modified or wholly undone. (Belmont v. Erie R. Co., 52 Barb. (N. Y.) 637; Fanning v. Dunham, 4 Johns. Ch. (N. Y.) 35.)

The court had jurisdiction to set aside an order made inadvertently and ex parte. (Wiggin v. Superior Ct., supra; Sherburne v. Strawn, 52 Kan. 39, 34 P. 405.)

An action may be dismissed notwithstanding the filing of a cross-complaint, where at the time of the dismissal the cross-complaint has been stricken from the files by the court acting within its authority. (Alpers v. Bliss, 145 Cal. 565, 79 P. 171.)

STEWART, C. J. Ailshie, J., concurs. Sullivan, J., sat at the hearing, but did not participate in the opinion.

OPINION

STEWART, C. J.

This is an action to adjudicate the rights of a large number of alleged appropriators of water from Big Wood river, a stream flowing through Blaine and Lincoln counties, this state. There are some twenty or more plaintiffs, and several hundred defendants. A referee was appointed by the court and the evidence taken, and after the close of the evidence the plaintiffs, by their attorneys, made an application to the court to make the Idaho Irrigation Company, Ltd., and J. G. White & Co. parties to the action. This application was based upon the affidavit of J. H. Hawley, one of counsel for the plaintiffs.

This affidavit, among other things, recites that the evidence in said cause has been taken by the referee, and that the taking of such evidence has not yet been completed, but that said cause is still open for the admission of other and further evidence; that the Idaho Irrigation Company, Ltd., is a corporation organized under the laws of the state of Idaho and that the articles of incorporation of said company were filed in the office of the secretary of state on or about the 22d day of December, 1905, and that said corporation was not in existence at the time of the commencement of the action; that on information and belief the Idaho Irrigation Company, Ltd., claims some right to the water and use of the water involved in this controversy, the extent and amount of said rights being to affiant unknown; but all of the rights of said corporation are inferior in right to that of each of the parties or the answering defendants herein; that J. G. White & Co. is a corporation, organized and existing under the laws of the state of Connecticut, and doing business in Lincoln and Blaine counties, in this state, and is engaged in the construction of dams, impounding the waters of said Big Wood river, and is acting in conjunction with the Idaho Irrigation Company in the construction of said dams and impounding said waters, and in the construction of works for the purpose of storing...