Great West Mining Co. v. Woodmas of Alston Mining Co.

• Decision Date: 20 January 1890
• Citation: 23 P. 908,14 Colo. 90
• Parties: GREAT WEST MIN. CO. v. WOODMAS OF ALSTON MIN. CO. et al.
• Court: Colorado Supreme Court

23 P. 908

14 Colo. 90

GREAT WEST MIN. CO. v. WOODMAS OF ALSTON MIN. CO. et al.

Supreme Court of Colorado

January 20, 1890

Appeal from district court, Arapahoe county.

Syllabus by the Court

1. Courts of equity will only grant relief in case the application therefor is made without unreasonable delay. The strongest equity may be forfeited by laches, or abandoned by acquiescence.

2. Where the subject-matter of a controversy is the right to unpatented mining property, the uncertain and fluctuating character of the property will be considered in determining the question of laches.

3. The statute of limitations fixes a limitation beyond which the courts cannot extend the time, but within this limit the peculiar doctrine of courts of equity will prevail.

4. As a rule, a judgment of a court of general jurisdiction is void in no case except when it appears from the record itself that the court, in pronouncing it, acted without jurisdiction.

L S. Dixon and H. B. Johnson, for appellant.

Hugh Butler, for appellees.

HAYT J.

The facts in this case, as they appeared previous to the last trial, are sufficiently set forth in the former opinions filed herein, and will not be again repeated. See 12 Colo. 46, 20 P. 771. The judgment of the district court of El Paso county in favor of appellees was then reversed, and the case remanded to that court, leaving counsel and the court below to pursue such course in relation to additional parties and further proceedings as they should be advised. Thereafter, by consent of parties, a change of venue was taken to the district court of Arapahoe county, and a new trial had. Upon this trial a large amount of additional evidence was introduced, upon which evidence, considered with that previously taken, the court below found the issues for the defendants, and dismissed the bill. To review this action of the court the case is brought here by appeal. In the district court the judge presiding at the trial, Hon. O. B. LIDDELL, filed a written opinion, with a copy of which we have been favored by counsel. In it the learned judge reviews the case at length, in connection with the authorities, and arrives at the conclusion that the appellant had been guilty of such unreasonable delay in asserting its rights that it ought not to be heard now.

An examination of the new evidence introduced discloses that it was largely directed to the question of laches. Upon the case as made upon the former appeal, this court was of the opinion that laches sufficient to defeat a recovery did not appear. Mr. Justice GERRY, delivering the opinion of the court, then said, in reference to Purmort, and the service of process upon him, that he 'concealed, or neglected to inform the company of, the fact of such service.' And again, upon rehearing, it was said: 'The appellant was not informed of the false return, or of the unauthorized appearances of Gwynn, in time to proceed by motion to correct the same in the court where the attachment suits were pending, and had no notice of the sale of its real property until the time for redemption had expired, but, as soon as it did obtain information of the fraud perpetrated upon it, it was diligent in employing counsel and commencing this suit; and, as this suit was brought within less than three years from the time of the perpetration of the fraud complained of, and within less than eighteen months from the time of the execution of the sheriff's deeds, and promptly upon the discovery of the fraud that had been practiced upon it, we think the appellant was chargeable with no such laches as should bar it from maintaining this action.' The additional evidence occupies over 200 hundred pages of the type-written transcript, and was deemed sufficient by the trial judge, after giving due weight to the evidence taken upon the first trial, and also to the former opinions of this court, to radically change the result then announced. With this new evidence the case is now before the court in a different aspect from that in which it appeared upon the first appeal. It is now shown that A. W. Kellogg was not only general agent of the appellant company, but that he had the entire management of the corporate business. The then secretary of the company, Mr. A. S. Whitaker, who has at all times been active in prosecuting this action, swears in reference to the Great West enterprise: 'It was a pet scheme of Mr. Kellogg, and he attended to everything.' Again he refers to Kellogg as 'having the supreme management.' The nature and scope of Mr. Kellogg's authority in the premises becomes important, in view of the fact that he, in the interest of the Great West Company, arranged for the institution of the Perkins suit in advance of Monyhan, who was threatening suit, in order that the working of the mine should not be interfered with. It appears that, in accordance with an arrangement previously entered into between Kellogg and the workmen at the mine, upon ascertaining from Monyhan, at Denver, that he was about to institute suit, Kellogg, by telegraph, directed the Perkins suit to be brought. These telegrams, two in number, were directed to Frank D. Howe, who describes himself as Kellogg's 'closest friend.' The originals were not produced upon the trial; but, their loss having been shown, Mr. Howe testified as to their contents as follows: 'The first telegram--the body of the message--was, 'Have Grogan commence suit in Perkins' name.' Then--there was a cipher used for Monyhan's name--'Monyhan means to make us trouble.' Then there was something followed, in the way of 'See Purmort, or something thing of that kind.' Again: 'I was a little mystified by the expression 'Grogan,' and I telegraphed Mr. Kellogg. 'Does Grogan mean Gwynn, and also the amount due the men?'' To this telegram the witness testifies that he received an immediate answer, in substance, as follows: 'Yes, at once; followed with the amounts due the men.' The witness further testifies that the Gwynn referred to was George R. Gwynn, an attorney resident at Alma.

That an attachment was to be issued in such suit is admitted, but it is claimed by the appellants that it was understood that such attachment would only be levied upon the personal property, while the witnesses for appellee testify that no such understanding was had. We attach little importance to this conflict, however; it now clearly appearing that the proceedings set on foot by Kellogg, acting for the company, actually resulted in the attachment and sale of its real property, The appellants' claim that such proceedings were carried to a greater extent than anticipated by it cannot have much weight in a court of equity as against the rights of bona fide purchasers deriving title through the sale made under the judgment rendered in such action. The evidence now also strongly tends to show that the three principal officers of the plaintiff company--Kellogg, Pomeroy, and Whitaker--had notice as early as 1883 that its real estate had been attached and sold in the Purmort and Monyhan suits. That Kellogg had such notice is shown beyond dispute; and here it may be said that it is a significant fact that plaintiff failed to call Kellogg as a witness in its behalf, although he was present, sitting by, at the trial. Kellogg's bias in favor of plaintiff is shown by his letters introduced in evidence. He was certainly well informed in reference to these matters; and his silence, under the circumstances, tends to create the belief that his knowledge was not of such a character as would benefit the plaintiff.

Upon the former appeal, it was not shown that the company had notice of the sale of its real estate in time to avail itself of the statutory right of redemption. It is now apparent however, that it had such notice in ample time. It is in evidence that the company was trying to raise money with which to redeem before the time for redemption should expire. Appellant not only failed to redeem, but allowed the years 1884 and 1885 to pass without making any effort to do the annual assessment work upon any of these claims, although such work was required by the mining laws under which they were claiming the property. From the time the sheriff's deeds were executed and delivered, in 1884, until this suit was commenced, in 1886, they permitted these defendants and their grantors to remain in the undisturbed possession of the property without protest, permitting them to develop the same under the belief that they had acquired a good title thereto. No fraud is imputed to the defendants. By the silence of plaintiffs, they were lulled into purchasing and making expenditures upon this property that they otherwise might not have made, although it is true they ultimately made a profit as the result of the hazard incurred. Under these circumstances, we are to determine whether the court erred in dismissing the bill on account of the laches of the plaintiff. It is a familiar principle that courts of equity will only grant relief in cases in which the application therefor is made promptly, and without unreasonable delay, whatever may be the merits of the controversy. The necessity for the application of this rule to cases in which the subject-matter of the litigation is the right to unpatented mining property, the only value of which arises from the precious metals contained therein, is apparent. The value of such properties is always uncertain, and usually purely speculative. This case furnishes an illustration of the uncertainty of such values. At the time the attachments were levied the properties were considered of little or no value. The ore extracted would not pay the expenses of taking it out. In fact the suits were instituted for labor performed and supplies furnished in working the mine; the...