Humphreys v. Idaho Gold Mines Development Co.

Decision Date08 January 1912
Citation120 P. 823,21 Idaho 126
CourtIdaho Supreme Court


(Syllabus by the court.)

1. Where an action was commenced against a foreign corporation and summons was served upon B., who had been designated in conformity with law as the statutory agent upon whom service of process might be made in this state, and B. did not notify the corporation or any officer thereof of the pendency of the action and took no steps to defend in the action, and a judgment by default was there- after entered and the officers of the corporation subsequently learned of the pendency of the action and the entry of judgment, and immediately upon learning such fact moved to set aside the judgment and open up the default and ask leave to answer to the merits of the case, and accompanied such application with a showing to the effect that B., when he was appointed as statutory agent of the corporation, was a stockholder and an officer in the corporation, and that he thereafter sold his stock and ceased to be an officer of the corporation or in any way connected therewith, and that he thought he was no longer the statutory agent of the corporation and that he was confined to his home by sickness at the time service was made upon him, and that he took no steps to advise the corporation of the pendency of the action, and the trial court upon such showing entered an order vacating and setting aside the judgment and default; held, that there was no such abuse of the discretion of the trial court in granting the application as would require or justify a reversal of the order.

2. Where a judgment has been entered by default and a timely application is made to set aside the default and permit an answer to the merits to be filed, and such answer discloses upon its face a good and meritorious defense, as a general rule if there be any reasonable doubt on the matter it will be resolved in favor of granting the application and allowing a trial upon the merits of the case, and on an appeal from an order granting such an application every reasonable presumption will be indulged in support of the order opening default and allowing a trial on the merits of the case.

3. Where an application is made to set aside a judgment entered by default and permit an answer to be filed, if the facts disclosed by the showing involve purely a question of law, it will involve no discretion on the part of the court, and must be determined solely upon the question of law raised; but where it presents a question of fact as to the diligence of the party or his having been taken by surprise, or being mistaken in a matter of fact, the application will appeal to the discretion of the court, and an appellate court will not disturb the exercise of that discretion unless a clear abuse thereof is shown.

4. Under the provisions of sec. 2332 of the Revised Statutes of the United States, the claimant to mineral lands of the United States who has been in the open, exclusive adverse possession of a claim for a continuous period equal to that required by the local statute of limitations governing adverse possession of real estate, is relieved of the necessity of making proof of posting and recording a notice of location and such other proofs as are usually furnished by the county recorder; or, in other words, he is relieved of furnishing the evidence of record title.

5. One who asserts his right to a mineral claim by adverse possession must show compliance with the statute in the matter of discovery and the performance of the annual assessment work, and before he can acquire a patent therefor must also show that he has done the required amount of work on such claim to entitle him to a patent therefor.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action to quiet title to mineral claims. Judgment by default in favor of plaintiff. Defendant moved to vacate and set aside the judgment and default. Motion granted and plaintiff appealed. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Jackson Quarles & Taylor, for Appellants.

Defendant must show that it is free from fault, heedlessness or lack of diligence in protecting its rights. Such carelessness negligence or inattention as could not be predicated of a good, careful business man in matters of material concern to him is not sufficient to authorize the setting aside of the default judgment. (Garner v. Erlanger, 86 Cal. 60 84 P. 805; Sanborn v. Centralia Furniture Mfg. Co., 5 Wash. 150. 31 P. 466; Harr v. Kight, 18 Idaho 53, 108 P. 539; Myers v. Landrum, 4 Wash. 762, 31 P. 33; Holland Bank v. Lieuallen, 6 Idaho 127, 53 P. 398; Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; Western Loan & Savings Assn. v. Smith, 12 Idaho 94, 85 P. 1084; Beck v. Lavin, 15 Idaho 369, 97 P. 1028.)

The negligence of an attorney or agent is the negligence of the principal. (23 Cyc. 939, 940, and note 1, citing numerous cases.)

While the proposed answer and cross-complaint with the proposed amendment thereto is voluminous, and much is alleged therein, it appears therefrom that the location of the Vale claim is absolutely void. The claim was not tied, by the location certificate, to any permanent object or natural monument, and the same was not verified as required by law. (Van Buren v. McKinley, 8 Idaho 93, 66 P. 936, 21 Morr. Min. Rep. 690; Dunlap v. Pattison, 4 Idaho 473, 95 Am. St. 140, 42 P. 504; McBurney v. Berry, 5 Mont. 300; McCowan v. Maclay, 16 Mont. 234, 40 P. 602; Berg v. Koegel, 16 Mont. 266, 40 P. 605.)

"Every consideration of expediency and justice is opposed to opening up of cases in which judgment by default has been entered, unless it be made to appear prima facie that the judgment, as it stands, is unjust." (Parrot v. Den, 34 Cal. 81.) How could it be made to appear unless the nature of the defense is disclosed? (Pearce v. Butte Electric Ry. Co., 40 Mont. 321, 106 P. 563.)

There can be no valid location of a mining claim in the state of Idaho as against the right of adverse claimants, except by compliance with the mining acts of Congress and of the state of Idaho. (Kramer v. Settle, 1 Idaho 485; Garthe v. Hart, 73 Cal. 541, 15 P. 93, 15 Morr. Min. Rep. 492; Armstrong v. Lower, 6 Colo. 581.)

A defective location confers no right as against other parties who perfect their location, the latter having exclusive right of possession. (Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735, 1 Morr. Min. Rep. 570; Gleeson v. White, 13 Nev. 442.)

There can be no right of possession to a mining claim which is not based on a valid location. (Willeford v. Bell (Cal.), 49 P. 6; Hamilton v. Huson, 21 Mont. 9, 53 P. 101, 19 Morr. Min. Rep. 274.)

The statute of limitations does not begin to run while the title is in the United States, except as between parties both of whom claim by possessory title only, any state or territorial legislation to the contrary notwithstanding. (King v. Thomas, 6 Mont. 409, 12 P. 865; Weibold v. Davis, 7 Mont. 107, 14 P. 865.)

Karl Paine, and Fremont Wood, for Respondent.

"A default inadvertently admitted by a party having a substantial defense presents a case in which great latitude should be extended to the discretion of the court by which the default was set aside." (Melde v. Reynolds, 129 Cal. 308, 61 P. 932; Harbaugh v. Water Co., 109 Cal. 70, 41 P. 792; Pearson v. Fishing Co., 99 Cal. 425, 34 P. 76; Andrus v. Smith, 133 Cal. 81, 65 P. 320; Nicoll v. Weldon, 130 Cal. 666, 63 P. 63.)

It is better, as a general rule, that the doubt should be resolved in favor of the applicant. (Watson v. Railroad Co., 41 Cal. 17; Grady v. Donahoo, 108 Cal. 211, 41 P. 41; Citizens' Nat. Bank v. Branden, 19 N.D. 489, 126 N.W. 102, 27 L. R. A., N. S., 858.)

Courts almost universally favor a trial upon the merits. (Barto v. Sioux City Electric Co., 119 Iowa 179, 93 N.W. 268.)

It is clearly a case of surprise, since the judgment was entered without any personal knowledge thereof having been brought home to the officers of the corporation. (Roberts v. Wilson, 3 Cal.App. 32, 84 P. 216; Board of Education v. Bank of Commerce, 4 Kan. App. 438, 46 P. 36; Glaeser v. City of St. Paul, 67 Minn. 368, 69 N.W. 1101; Stretch v. Montezuma Min. Co., 29 Nev. 163, 86 P. 445; Pelegrinelli v. McCloud River Lumber Co., 1 Cal.App. 593, 82 P. 695.)

The possession of Osborn and his colocator and their grantees, and their continued occupancy and working of the claim for the period of five years before an adverse claim attached, was made equivalent under the federal statute to a valid location under the United States statute, including the local statutes and the customs and usage of miners. (Lindley on Mines, par. 688; Altoona Q. M. Co. v. Integral Q. M. Co., 114 Cal. 100, 45 P. 1047, 18 Morr. Min. Rep. 410; Upton v. Mining Co., 14 N. M. 96, 89 P. 283; Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735, 1 Morr. Min. Rep. 510; Anthony v. Jillison, 83 Cal. 302, 23 P. 419, 16 Morr. Min. Rep. 26.)

The Vale location notice and certificate and the facts alleged in the affidavits and answer bring the case directly within the decision in the cases of Bismark etc. Mining Co. v. North Sunbeam Gold Co., 14 Idaho 519, 95 P. 14; Morrison v. Regan, 8 Idaho 291, 67 P. 955, 22 Morr. Min. Rep. 69.

The record shows that for years prior to the locations made by plaintiffs the defendants had been in possession of the property continuously, improving and caring for it and protecting it, doing actual physical labor upon it. This is...

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