Iba v. Central Association of Wyoming

• Decision Date: 25 October 1895
• Parties: IBA v. CENTRAL ASSOCIATION OF WYOMING
• Court: Wyoming Supreme Court

40 P. 527

5 Wyo. 355

IBA v. CENTRAL ASSOCIATION OF WYOMING

Supreme Court of Wyoming

October 25, 1895

5 Wyo 355 at 367.

Original Opinion of May 29, 1895, Reported at: 5 Wyo. 355.

Rehearing denied.

Baird &amp Churchill, for defendant in error.

On petition for rehearing the following additional authorities were cited: Dutch Flat Wat. Co., 12 Cal. 534; 1 Am. & Eng Ency. Pl. & Pr., 785; Boone Code Pl., sec. 185; Van Duyn, 45 Ind. 589; Wicks v. Smith, 18 Kan. 508; Winslow v. Winslow, 52 Ind. 8.

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

ON PETITION FOR REHEARING.

POTTER JUSTICE.

This case was originally submitted upon briefs, and the decision of this court was rendered reversing the judgment of the district court and remanding the case for trial. A motion for rehearing having been filed, in view of the somewhat important questions of practice to be determined, an oral argument was requested by the court. The points involved have been ably presented by counsel, and we have again given them careful thought and consideration.

The facts are stated in extenso in the former opinion of Groesbeck, C. J. It will, therefore, be sufficient at this time to advert very briefly to the matter in controversy.

Defendant in error applied at the United States Land Office for a patent to a certain placer mining claim; the plaintiff in error filed an adverse claim, and within the period required by the statutes of the United States commenced this suit in the district court, to determine the question of the right to possession. (U. S. Rev. Stat., sec. 2326.) All the material averments requisite in such a case were contained in his petition, including an allegation of citizenship, ownership of the ground in controversy, and right to its possession, a full compliance with the laws of the United States and this State, and the rules and regulations of the mining district, the application of defendant for patent, and the filing of the adverse claim. It was also averred that defendant was in wrongful possession of the land. The defendant filed its answer specifically denying the material allegations of the petition, except its own corporate existence; and for a second defense and cross petition alleging ownership and right to possession in itself, as well as its actual possession, a full compliance on its part with the laws and rules in relation to mining lands, and ending with a prayer that its title to said real estate be quieted as against the plaintiff. No reply was filed to this second defense, and on motion of the defendant, which was resisted by plaintiff, the court rendered judgment upon the pleadings, assuming the allegations of the second defense to be admitted in default of a reply, and entered a judgment in favor of defendant, specifically finding as true the material facts alleged in said defense.

Did the court err in thus rendering judgment upon the pleadings? It may be asserted as a primary proposition, and we take it to be conceded, that unless a reply was necessary there existed no authority for such a judgment.

If this suit was an ordinary one to recover possession of real estate, the plaintiff alleging ownership and right to possession, and the defendant not only denying the claims of plaintiff, but averring ownership in himself, it is clear that no reply would have been required. In such a case these allegations of the answer would amount merely to a denial of the claim set up by the plaintiff. Such ownership could have been shown under a general denial. This is sufficiently demonstrated in the former opinion. It is, however, urged with much earnestness that a different rule prevails in a controversy of this character, by reason of the peculiar provisions and requirements of the United States statute. The amendment to section 2326, U.S. Rev. Stat., enacted in 1881, provides that, if title to the ground in controversy shall not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict, and it is now settled that upon the trial the court or jury must find, and the judgment must show which party if either is entitled to the property; and if is found that neither of the parties has shown a right thereto, that must be found and the judgment must so state.

In view of this, it is insisted that the allegations of the second defense in the answer constitute new matter which must be replied to or they will stand admitted; and that it is absolutely essential to protect its own rights, and authorize a finding and judgment in its favor establishing its title to the ground, that an affirmative pleading of this kind should be filed by the defendant. That, if the defendant is required to plead his own title, it thereby perforce becomes new matter; that defendant cannot rely upon the weakness of the plaintiff's title, but can obtain the relief demanded in such a case as this only by showing his own title, notwithstanding that the plaintiff fails to make such a showing as to authorize a judgment in his favor. This, we believe, is a fair outline of the contention of counsel for defendant in error. It is not urged, as we understand it, that a reply is demanded to anything which is not new matter, but that the answer contains new matter.

The law of congress, in pursuance of which this and kindred actions are brought, confers no additional jurisdiction upon State courts. "The object of the law" . . . . "was to require parties protesting against the issuance of a patent to go into the State courts of competent jurisdiction and institute such proceedings as they might, under the different forms of action, therein allowed, elect, and there try 'the rights of possession' to such claim and have the question determined. The acts of congress do not attempt to confer any jurisdiction, not already possessed by the State courts; nor to prescribe a different form of action." The 420 Mining Co. v. The Bullion Mining Co., 9 Nev. 240, 248. We have quoted from the Nevada case. That court, in the case cited, then proceeds to illustrate the application of that view, and states that if the parties protesting are in possession they can bring their action under a certain section of their civil practice act therein referred to, or if they have been ousted from the possession they can bring their action of ejectment; and that in either action the right of possession can be finally settled and determined. The opinion in that case then proceeds to say: "We are of opinion that when the action is brought, whatever may be its character, it must be tried by the same rules, governed by the same principles, and controlled by the same statutes that apply to such actions in our State courts, irrespective of the acts of congress." This exposition of the character of this class of cases when brought in a State court conforms to our views; we believe it is not opposed elsewhere, but that the principles thus enunciated are well established.

When such a suit is commenced rightfully in a State court, the rules of pleading and practice governing the action which is selected by the complaining party, and the remedy thereby sought applies to the same extent and with the same force as to such an action generally, unless a different statutory rule is provided, except, perhaps, in the nature of the judgment to be rendered. Our Code of Civil Procedure provides, generally that the answer shall contain: "First, a general or specific denial of each material allegation of the petition controverted by the defendant; second, a statement of any new matter constituting a defense, counter-claim or set-off, in ordinary and concise language." Rev. Stat., Sec. 2457. With special reference to actions for the recovery of real property, it provides: "It shall be sufficient in such action, if the defendant in his answer deny generally the title alleged in the petition, or that he withholds the possession; but if he deny the title of the plaintiff, possession by the defendant shall be taken as admitted." Sec. 2988. The statutory provisions in relation to a reply, so far as this case is concerned, are found in sections 2466 and 2468. Sec. 2466 is as follows: "When the answer contains new matter, the plaintiff may reply to such new matter denying generally or specifically each allegation controverted by him; and he may also allege, in ordinary and concise language, any new matter not inconsistent with the petition, constituting an answer to such new matter in the answer." Section 2468 provides: "Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer not controverted by the reply, shall, for the purposes of the action, be taken as true." In section 2469 we are furnished with a statutory definition of a material allegation. "A material allegation in a pleading is one essential to the claim or defense which could not be stricken from the pleading without leaving it insufficient."

The whole question, then, is whether or not that part of the answer, which is claimed should have been replied to, amounts to "a material allegation of new matter."

Pomeroy defines the new matter of the codes as that which "admits that all the material allegations of the complaint or petition are true, and consists of facts not alleged therein which destroy the right of action, and defeat a recovery," and adds that all facts which directly tend to disprove any one or more of the averments of the petition may be offered under the general denial. Pomeroy's Remedies & Remedial Rights, Sec. 673. The above definition is, perhaps, as accurate as one can be framed in brief language. See Mauldin v. Ball, 5 Mont. 96, 1 P. 409. It does not mean that the allegations of the...