Keppler v. Becker
| Decision Date | 30 March 1905 |
| Docket Number | Civil 867 |
| Parties | HERMAN D. KEPPLER et al., Plaintiffs and Appellants, v. PAUL BECKER, Defendant and Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Graham. Fletcher M. Doan Judge. Affirmed.
The facts are stated in the opinion.
Edwards & McFarland, for Appellants.
The court erred in sustaining the demurrer to the amended complaint and dismissing the action.
In the complaint and amended complaint the parties are the same; the same right is sought to be obtained; the same wrong is complained of; the object to be accomplished is the same; and the property in dispute is the same.
In suits of this kind no form of action is provided for by the statute. "An action at law, or a suit in equity would lie, as either might be appropriate under the particular circumstances." Perego v. Dodge, 163 U.S. 160 16 S.Ct. 971, 41 L.Ed. 113.
The character of the suit depends upon the practice in the state in which the suit is brought. A complaint sufficient in form to support an action to quiet title would be a good complaint in an action where a party was trying to establish his adverse claim. Mares v. Dillon, 30 Mont. 117, 75 P 963; Providence G.M. Co. v. Burke, 6 Ariz. 323, 57 P. 641; Jordan v. Duke, 6 Ariz. 55, 53 P. 197; Jordan v. Schuerman, 6 Ariz. 79, 53 P. 579; Deeney v. Mineral Creek M. Co., 11 N. Mex. 279, 67 P. 724.
An amended complaint which does not state a new cause of action or bring in new parties, relates back to the filing of the original complaint, and the statute of limitations ceases to run at the date of the filing of the original complaint. Union Pacific Ry. Co. v. Wyler, 158 U.S. 285, 15 S.Ct. 877, 39 L.Ed. 987; Motes v. Gila Valley etc. Ry Co., 8 Ariz. 50, 68 P. 532; Link v. Jarvis, (Cal.) 33 P. 206; Jones v. George, 66 Tex. 149, 42 Am. Rep. 689; Woody v. Hinds, 30 Mont. 189, 76 P. 1; Deeney v. Mineral Creek M. Co., supra; Bishop v. Baisley, 28 Or. 119, 41 P. 936.
Herring & Sorrin, for Appellee.
The requirement of section 2326 of the Revised Statutes of the United States, that proceedings must be commenced within thirty days, has been termed "a short statute of limitations," but this provision is a special statutory limitation qualifying the particular right created by this statute. The right to bring suit at all in support of an adverse claim is conferred by this section, and this right is conditioned upon the commencement of the suit within thirty days after the filing of the adverse claim in the proper United States land office.
This limitation is a condition qualifying the right of action, and not a mere limitation of the remedy. Theroux v. Northern Pacific R.R. Co., 64 F. 84, 12 C.C.A. 52.
It is only in cases involving the pure statutes of limitations -- the ordinary statutes of limitations -- that the rule invoked by appellants, that an amended pleading relates back to the filing of the original, so as to prevent the running of the statute of limitations, is ever upheld.
This action brought by an adverse claimant under section 2326, to defeat the application for a patent for a mining claim, is brought under a special law, and is maintainable solely by its authority. Of the limitation now under consideration, it may be said: "The limitation of time is so incorporated with the remedy given as to make it an integral part of it and the condition precedent to the maintenance of the action at all." Hill v. Supervisors, 119 N.Y. 344, 23 N.E. 921.
For further authorities recognizing and emphasizing the distinction between ordinary statutes of limitations and those statutes wherein the period allowed for the enforcement of a right is a constituent part of the right, and a condition qualifying it, see The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Savings and Trust Co. v. Bear Valley Irr. Co., 89 F. 32; Pittsburg etc. Ry. Co. v. Hine, 25 Ohio St. 629; Bartlett v. Manor, 146 Ind. 621, 45 N.E. 1060; Lambert v. Ensign Mfg. Co., 42 W.Va. 813, 26 S.E. 431; George v. C., M. and St. P.R. Co., 51 Wis. 603, 8 N.W. 374; Boyd v. Clark, 8 F. 849; Paulk v. Jasper Land Co., 116 Ala. 178, 22 So. 495; Ross v. Kansas City S.R. Co., 34 Tex. Civ. App. 586, 79 S.W. 626; Goodwin v. Cunningham, 54 Neb. 11, 74 N.W. 315; Negabauer v. Great Northern Ry. Co., 92 Minn. 184, 104 Am. St. Rep. 674, 99 N.W. 620; Brunswick Terminal Co. v. National Bank of Baltimore, 99 F. 635, 40 C.C.A. 22; Walsh v. Mayer, 111 U.S. 31, 28 L.Ed. 338, 4 S.Ct. 260; Taylor v. Cranberry Iron etc. Co., 94 N.C. 525; Pritchard v. Norton, 106 U.S. 124, 1 S.Ct. 102, 27 L.Ed. 104; Bonte v. Taylor, 24 Ohio St. 628; Parmelee v. Savannah etc. Ry., 78 Ga. 239, 2 S.E. 686; Deboth v. Rich Hill Coal Min. Co., 141 Mo. 497, 42 S.W. 1081; Foster v. St. Luke's Hospital, 191 Ill. 94, 60 N.E. 803; Foley v. Suburban Ry. Co., 98 Ill.App. 108.
It is of interest, however, in view of plaintiff's theory of the case, to note that many courts which recognize the rule applicable to ordinary statutes of limitation, that a new cause of action set up by way of amendment cannot relate back to the filing of the original pleading so as to arrest the running of the statute, consistently hold that, where the original complaint states no cause of action, an amended complaint which states a good cause of action necessarily states a new cause of action within the rule just stated, and therefore cannot relate back to the filing of the original so as to arrest the running of the statute. Eylenfeldt v. Illinois Steel Co., 165 Ill. 185, 46 N.E. 266; Missouri K. and T. Ry. Co. v. Bagley, 65 Kan. 188, 69 P. 189, 3 L.R.A. (N.S.) 259; Doyle v. City of Sycamore, 193 Ill. 501, 61 N.E. 1117; Bricken v. Cross, 163 Mo. 449, 64 S.W. 99; Lasater v. Fant, (Tex. Civ. App.) 43 S.W. 321.
Statutes such as that here under consideration must be strictly construed. Sea Grove Bldg. and Loan Assn. v. Stockton, 148 Pa. St. 146, 23 A. 1063.
-- The appellee filed in the United States land-office at Tucson an application for a patent to the Last Chance mine, situate in the Copper Mountain mining district, Graham County, Arizona. On the thirteenth day of January, 1904, the appellants filed their adverse claim in the land-office, based upon a mining location known as the "La Fortuna," covering the same land described and embraced within the boundaries of the said Last Chance claim. On the nineteenth day of February 1904, the appellants brought an action in the district court of Graham County in support of said adverse claim. The complaint filed by them in this action contained, in substance, these allegations: That the plaintiffs were citizens of the United States, and residents of the territory of Arizona; that they were the owners and entitled to the possession of the La Fortuna mining claim; that the defendant, Becker, had applied for a patent to the Last Chance mining claim, and had caused notice of application thereof to be published; that within the period of said publication plaintiffs had filed an adverse claim with the register and receiver of the United States land-office at Tucson, claiming the land embraced within the boundaries of said Last Chance claim as being the same land included within the boundaries of the La Fortuna mining claim; that the action was brought in support of said adverse claim, and to determine the rights of the parties to the ground covered by their said mining claim. They further alleged that the defendant made claim adverse to their rights in and to the land in dispute by virtue of the La Fortuna mining claim. Their prayer was "for the establishment of their rights, titles, and possession" in and to the lands in dispute, and that the defendant be estopped from having or claiming any right or title to the same adverse to the plaintiffs. The defendant appeared and demurred to the complaint upon the ground that the facts pleaded did not constitute a cause of action. The demurrer was sustained to the complaint by the trial court, and leave granted to amend. Subsequently, but after the expiration of thirty days from the date of the filing of the adverse claim in the land-office, the plaintiffs filed an amended complaint. The defendant demurred to the amended...
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