Galbes v. Girard

• Decision Date: 01 June 1891
• Parties: GALBES v. GIRARD, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

46 F. 500

GALBES v. GIRARD, et al.

United States Circuit Court, S.D. California.

June 1, 1891

Noble Hamilton, for complainant.

Stephen M. White, for defendants.

ROSS J.

To the bill in this case the state of California as well as certain individuals are made defendants. So far as the state is concerned, its exceptions to the jurisdiction and motion to dismiss the bill must be sustained, upon the ground that there is no law authorizing such suit to be brought against it. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504. It is provided by the constitution of California that 'suits may be brought against the state in such manner and in such courts as shall be directed by law. ' Section 6, art. 20. But the legislature of the state has not enacted any law authorizing the bringing against the state of such a suit as the present. Until it does so, the suit, so far as the state is concerned, cannot be maintained. Beers v. State, 20 How. 527.

The demurrer of the individual defendants raises several objections to the bill, but one of which it is necessary to consider. In my opinion, the bill shows on its face such laches that a court of equity should withhold the aid invoked. To call such a court into activity there must not only be conscience and good faith on the part of complainant but reasonable diligence as well. Speidel v Henrici, 120 U.S. 377, 7 S.Ct. 601, and cases there cited. In the present case the acts which form the basis of complainant's bill occurred from 12 to 16 years before the bill was filed. They were not only matters of record, and open to public inspection, but the bill shows on its fact that complainant and his mother, to whose interest in the property in question he is alleged to have succeeded by her death in 1885, as early as 1876 commenced proceedings in the courts of the state to secure the same rights now asserted by complainant. The last suit so brought was dismissed by the court February 3, 1879, on the stipulation of counsel for the respective parties. In the present bill it is alleged that complainant did not know of such dismissal 'until a long time' afterwards. But the act of his counsel in that particular was his act, of which he must be held to have had knowledge. A period more than double that allowed by statute in California for the recovery of real property was thereafter allowed to elapse before the institution of the present suit. I think the cause of suit stale, and...