Kelley v. Boettcher

Citation85 F. 55
Decision Date14 February 1898
Docket Number870.
PartiesKELLEY et al. v. BOETTCHER et al. [1]
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

This is an appeal from a decree which dismissed a bill to rescind a sale of one-sixth of a mining claim, and to obtain an accounting and recovery of the proceeds thereof. The appellants exhibited their original bill in the court below on June 19, 1895. On September 21, 1895, two of the appellees interposed a demurrer to this bill, and on June 30, 1896, the demurrer was sustained. The appellants amended their bill and the appellees demurred to the amended bill. On July 7 1896, the circuit court sustained this demurrer, and rendered an opinion in which it declared that the amended bill did not state facts sufficient to warrant the rescission of the sale or any other relief; that the appellants were not entitled to address any interrogatories to the appellees or to any discovery in the suit, since parties in interest may be compelled, under the federal and state statutes, to testify concerning any matter in issue between them; that the amended bill, which covered 170 typewritten pages, and contained scandalous and impertinent averments, must be stricken from the files of the court; and that the appellants should be permitted to file a new bill as of the date of the filing of the original bill. Upon the rendition of this opinion, an order was made sustaining the demurrer withdrawing the original and amended bills from the files, and granting permission to the appellants to file a new bill as of June 19, 1895, which should not exceed 25 typewritten pages in length and which should contain only the matters declared to be proper for consideration in the opinion upon the demurrer. On July 13, 1896, the appellants elected to stand on their amended bill, and declined to file a new bill under this order, and the court dismissed their suit. The appeal challenges this decree of dismissal.

Edward B. Green and Amos Green, for appellants.

Charles J. Hughes, Jr., and Charles Cavender, for appellees.

Before SANBORN, and THAYER, Circuit Judges, and PHILLIPS, District Judge.

SANBORN Circuit Judge, after stating the facts as above, .

The authority to control the volume and character of the pleadings and proceedings before it, and to strike from its files those that are obnoxious to its rules and practice, is necessary to the speedy and efficient administration of justice, and is one of the inherent powers of a court of chancery, which has been exercised without question since the establishment of such courts. Daniell, Ch. Prac. *350. Prolixity, tautology, scandal, and impertinence have been among the common faults of bills in equity time out of mind. Lord Keeper Bacon made an order that no bills should contain more than 15 sheets of paper; and Lord Chancellor Egerton followed it with another, to the effect that no sheet should contain more than 15 lines, and an excess of the allotted quantity furnished good ground for demurrer. Story, Eq. Pl. Sec. 266, note 1. The supreme court leveled Equity Rules 26 and 27 at these evils. Those rules declare that every bill shall be expressed in as brief and succinct terms as it reasonably can be, and that, if it shall contain impertinent matter or scandalous matter not relevant to the suit, it may, on exceptions, be referred to a master, and such matter may be expunged, at the cost of the complainant, unless the court or a judge thereof shall otherwise order. These rules provide that scandalous and impertinent matter may be stricken out by a master after exceptions have been filed, but they do not abrogate nor curtail the inherent power of the federal courts sitting in equity to strike out rambling or tautological pleadings, and to purge their records of scandalous or impertinent matter on their own motion, regardless of the absence of exceptions. They were adopted not to limit the power, but to lighten the burdens of those courts. The authority and the duty of a federal court to keep its records free from stain and scandal are by no means dependent on the ability or disposition of counsel for the litigants before it, but its power is plenary and its duty imperative, whatever the action of counsel may be. Ex parte Simpson, 15 Ves. 476; Christie v. Christie, 8 Ch.App. 499; Campbell v. Taul, 3 Yerg. 548, 563; Langdon v. Goddard, 3 Story, 13, Fed.Cas. No. 8,061; Wood v. Mann, 1 Sumn. 578, Fed. Cas. No. 17,952; Green v. Elbert, 137 U.S. 615, 624, 11 Sup.Ct. 188; Kelley v. Boettcher, 49 U.S.App. 620, 27 C.C.A. 177, and 82 F. 794. Scandal, in a pleading in equity, consists of any unnecessary allegation which bears cruelly upon the moral character of an individual, or states anything which is contrary to good manners, or anything which it is unbecoming the dignity of the court to hear. Impertinence consists of any allegation that is irrelevant to the material issues made or tendered. Daniell, Ch. Prac. *347.

The amended bill before us bears the signature of Mr. T. A Green, and it was before this court at its May term, when a motion was made to strike his brief from its files. Kelley v. Boettcher, 49 U.S.App. 620, 27 C.C.A. 177, and 82 F. 794. It contains 49 typewritten pages of interrogatories addressed to certain defendants, who have been dismissed from the suit, which are not printed in the record before us. The bill fills 42 pages of the printed record without these interrogatories. Careful and repeated searches through its labyrinthine mazes have brought to light scattered and disjointed, but reiterated, allegations of the existence of these facts: On November 7, 1886, Thomas J. Kelley died, seised of the undivided one-sixth of the Little Johnny lode mining claim; and the appellant Thomas D. Kelley, his father, inherited that interest under the laws of the state of Colorado, where the claim was located. The appellant Michael P. Kelley was the brother, the appellant Annie B. Kelley was the sister, and the appellant Margaret O. Kelley was the mother, of Thomas J. Kelley; and in the event of the death of Thomas D. Kelley intestate, while seised of this one-sixth of this claim, it will descend to them, under the laws of Colorado. The appellees Charles Boettcher, John F. Campion, and A. V. Hunter wrongfully held the possession of, operated, and appropriated to themselves the proceeds of, this mine until March 5, 1891, when they organized the appellee the Ibex Mining Company, a corporation, and conveyed to it their interests, and delivered to it the possession and control of the mine. From that time until the filing of the bill, the appellees in this case have continued to operate the mine, and to appropriate its proceeds to their own use. In the latter part of the year 1892, they employed one Reger, who lived in Colorado, and knew all about this mine, its condition, value, history, and products, to go to Galena, in the state of Illinois, where the appellants (who were ignorant of the value, history, condition, and products of this mine, and of the business of mining for gold and silver) live, and to induce them, by false representations and the concealment of material facts, to convey the one-sixth interest in it, which Thomas D. Kelley held, to the appellee Charles Boettcher, who afterwards conveyed that interest to the mining company. In order to induce them to make this conveyance, Reger told the appellants that no valuable ore had ever been discovered in this mine; that it had never been profitably worked; that it was full of water to the surface, and on that account could not be examined; that it would require a long time, and the expenditure of a large amount of money, for pumps, machinery, and their operation, to remove the water, so that the mine could be examined or operated; that the mining claim was of little or no value; and that the one-sixth interest held by Thomas D. Kelley was not worth more than $250. The appellants believed these representations, and were induced thereby to join in a deed of this one-sixth of the mine to the appellee Boettcher, on January 16, 1893, in consideration of $1,000, which Reger paid to Thomas D. Kelley. The facts were, however, that the mine was not flooded with water at this time, but that the appellees were working it night and day, and were extracting from it ore of the value of $200,000 per month; that it could have been examined without expense or difficulty; that before this time gold and silver ores had been discovered on this claim; that it had produced ores of the value of several millions of dollars above the expenses of developing and operating it; and that it had become worth $5,000,000 before this deed was made. Since the deed was made, the mine has continued to increase in value, and the appellees have continued to extract and are still drawing from its ores of the value of $250,000 per month. During all this time they have kept the underground workings of the mine locked and barred, and have persistently concealed the amount and value of its products. They have mixed these products with those of other mines, so that it was impossible to separate them, and they have purchased other mines with the income derived from the proceeds of its products. They are still concealing the amount and value of these products, and falsifying their account books for that purpose. The appellants believed Reger's statement that the mine was flooded with water to the surface; that it could not be examined without the expenditure of large amounts of money and the lapse of much time; and that it was practically worthless, and they received no notice of its actual history and condition until about two weeks before they exhibited their original bill. The prayer of the bill is for a decree canceling the deed of January 16, 1893, for an accounting and recovery...

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