Golden Terra Min. Co. v. Smith

• Decision Date: 27 December 1881
• Parties: Golden Terra Mining Co. v. Smith, Guardian ad litem, and others.
• Court: North Dakota Supreme Court

11 N.W. 97

2 Dakota 374

Golden Terra Mining Co. v. Smith, Guardian ad litem, and others.

Supreme Court of Territory of Dakota

December 27, 1881

Motion to substitute parties respondent and attorneys.

W. C Kingsley, for the motion. McLaughlin & Steele, opposing.

MOODY J.

An action with the foregoing title being pending in this court upon appeal from the district court of Lawrence county, W. C Kingsley, Esq., a member of the bar of the first district and of this court, comes and presents to the court a motion in writing praying that the Ophir Consolidated Gold Mining Company, a corporation organized under the laws of the state of California, and transacting business in this territory may be substituted as the party defendant and respondent in this appeal, in place of the parties respondent to the record, and also that he be substituted as the attorney of record for such respondent in lieu of Messrs. McLaughlin & Steele, who are the attorneys for the present respondents Smith and others. In support of his motion Mr. Kingsley offers certain affidavits which tend to prove that since this action was commenced in the district court the mining property, which is the subject of controversy, has been purchased by and transferred to his client, the Ophir Consolidated Gold Mining Company, from the respondents, and that by such purchase and transfer the said corporation has succeeded to all the respondents' rights in said property, and that such transfer was made while this action was pending in the district court; but no effort was then made to have a substitution of parties. Mr. Kingsley further shows that he is the duly-appointed attorney of said corporation.

This motion is opposed by the attorneys for the respondents, they alleging that the respondents have an interest in the judgment obtained in the court below, which is appealed from at least to the extent of the costs awarded, amounting to $2,659.70; that they have incurred considerable expense in preparation to meet the appeal, which has not been reimbursed to them; and further, that the respondents are large stockholders in the corporation seeking to be substituted, and that the motion is made in the interest of the appellants with a view of securing a reversal of the judgment, alleging that the persons owning the appellant corporation have since this appeal purchased a controlling interest in the Ophir Consolidated. But respondents' attorneys...