O'Haire v. Burns

• Decision Date: 03 May 1909
• Citation: 45 Colo. 432,101 P. 755
• Parties: O'HAIRE v. BURNS.
• Court: Colorado Supreme Court

101 P. 755

45 Colo. 432

O'HAIRE v. BURNS.

Supreme Court of Colorado

May 3, 1909

Error to District Court, El Paso County; William P. Seeds, Judge.

Action by James F. Burns against John D. O'Haire. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Scott Ashton and Dan B. Carey, for plaintiff in error.

C. S Thomas, Richardson & Hawkins, and Wm. P. Malburn, for defendant in error.

HILL, J.

This action was disposed of in the court below upon the pleadings. The plaintiff in error, defendant in the court below demurred to the complaint of the plaintiff, which demurrer was overruled, and, the plaintiff in error having elected to stand by his demurrer, a permanent restraining order was issued enjoining him from prosecuting a certain action against the defendant in error in the district court of Pottawattamie county, Iowa, and from taking any additional steps in said cause, etc. It is alleged the suit in Iowa had grown out of certain dealings between them in connection with the location of mining claims in the Cripple Creek district in Colorado, in 1891 and 1892.

In order to convey an intelligent idea of the issues, it is necessary to set forth parts of the plaintiff's complaint in the court below, in which the defendant in error, Burns as plaintiff, alleges, in substance:

That plaintiff and defendant, during all times therein mentioned were citizens and residents of El Paso and Arapahoe counties, Colo. That on January 25, 1894, defendant filed his complaint in the district court of El Paso county against plaintiff, in which he alleged, in substance, that he, O'Haire, on or about November 15, 1891, entered into a prospective agreement with the plaintiff, Burns, and one O'Driscoll to prospect and locate mining claims in the Cripple Creek mining district, by the terms of which Burns and O'Driscoll were to devote their time to prospecting, the said O'Haire to furnish provisions and supplies for them, but the mining properties discovered or developed should be owned by the three in equal shares. That he (O'Haire) performed his part of said agreement. That on or about the 22d of January, 1892, Burns, without the knowledge of O'Haire or O'Driscoll, discovered the Portland lode mining claim, caused the same to be surveyed, and recorded in the name of himself and one Doyle. At the time of its location the agreement was in force. On October 10, 1892, Burns and O'Driscoll divided with O'Haire certain other claims owned by them and located under the terms of this agreement. That Burns concealed from him and O'Driscoll the fact that said Portland claim had been located, with intent to defraud him out of his share. That he (O'Haire) was the owner of one-third of one-half of said Portland claim by reason of the premises. That since the discovery of the Portland lode Burns and his co-owners had mined and shipped valuable ore therefrom. Prayer: He be decreed an owner of one-sixth of said Portland claim, that Burns be decreed to convey one-sixth to him, an accounting be had, etc.

That later amended complaints were filed by which the Portland Gold Mining Company and one Condon were impleaded as codefendants, same cause of action stated, with additional allegations that a corporation called the 'Portland Gold Mining Company,' claimed to be the owner of some interest in said claim, was then working it and extracting ore. That Condon claimed to have some interest in said property, the same prayers for relief, receiver, etc., summons issued, service made, etc., to which pleadings answers were filed denying the material averments of the complaints as to the Portland claim alleging other matters, etc., to which replications were filed, one Preston was appointed referee to take testimony, etc., which he did, reported same, etc. That the court, on December 13, 1895, determined the issues against the said John D. O'Haire and in favor of the said Burns and his codefendants, a motion for a new trial was overruled, and final decree entered January 10, 1896. Defendant. O'Haire, appealed to the Supreme Court of Colorado, which court, at the April term, 1899, duly affirmed said decree (26 Colo. 190, 56 P. 1116), whereby said claim and cause of action was finally adjudged and determined, etc. That afterwards, on December 18, 1901, defendant brought a second action against plaintiff and the Portland Company, in the district court of El Paso county, in which complaint he recited the previous proceedings in his first suit, and further alleged that this plaintiff procured Doyle to testify falsely in said first action against him, whereby Burns was enabled to prevail. That thereafter Doyle, in a suit in Pottawattamie county, Iowa, of Doyle v. Burns, testified his testimony in the former suit here was untrue, stated his inability to discover its untruth sooner, and brought this suit by reason of this newly discovered evidence, asked the decree in former case be annulled, and he be permitted to relitigate it, etc. That this plaintiff, having been served with process appeared, moved to strike the complaint and to dismiss the action, etc., which motion was sustained, April 25, 1903, whereupon said defendant prayed, but never perfected, an appeal to the Supreme Court. That thereafter, on February 1, 1904, this plaintiff, as president, director, and a stockholder of the Portland Company (which was organized under the laws of Iowa), was obliged to and did attend its annual stockholders' meeting at Council Bluffs, Pottawattamie county, Iowa, more than 500 miles from the common residence of the parties in Colorado, and beyond the jurisdiction of the Colorado courts, and that while attending said meeting in Council Bluffs defendant began a suit against him in Iowa and caused original notice, the same being a summons, to be served upon him by the sheriff of Pottawattamie county, reading as follows: 'John D. O'Haire, Plaintiff, v. James F. Burns, Defendant. In the District Court of the State of Iowa, in and for Pottawattamie County, March Term, A. D. 1904. To James F. Burns: You are hereby notified that on or before the 3d day of March, A. D. 1904, the petition of the plaintiff in the above-entitled cause will be filed in the office of the clerk of the district court of the state of Iowa, in and for Pottawattamie county, claiming of you the sum of three hundred thousand dollars, money as justly due from you, and interest thereon at _____ per cent. from the ___ day of _____, A. D. 190 _, as moneys in your possession and under your control belonging to him and growing out of certain dealings between you and plaintiff in connection with the location of certain mining claims in the Cripple Creek district, Colorado, in the years 1891 and 1892. (For more particular statement of cause of action, see petition when filed.) And that unless you appear thereto and defend before noon of the second day of the next term, being the March, 1904, term of said court, which will commence at Council Bluffs on the 15th day of March, 1904, default will be entered against you and judgment and decree rendered thereon as provided by law. Dated 1st day of February, A. D. 1904. N. A. Crawford, Attorney for Plaintiff.'

That he was informed by persons learned in the laws of Iowa and believes by said notice, unless he should appear as above cited, default judgment will be entered against him for $300,000. That no petition was filed, or, under Iowa law, need be filed until March 3, 1904. That no such petition was served upon him, in consequence of which he is obliged to depend upon the notice for information as to the nature of said action. Alleges, nevertheless, he is not indebted to defendant in any sum. The only transactions between him and defendant concerning the location of mining claims in the Cripple Creek mining district in 1891 and 1892 or at any other time or place, were those mentioned in the actions of defendant against him as hereinbefore set forth, which had been fully tried, finally and forever adjudicated against the defendant. That said pretended cause of action set forth in the notice is groundless, has no existence in fact. That any and all alleged claims of the defendant against him concerning mining claims in the Cripple Creek district or elsewhere have been instituted and finally determined. That the plaintiff, at about all times since 1891, has been present in and subject to the process of the courts of Colorado, which fact defendant well knew. That ...