Markell v. Kasson

• Decision Date: 12 May 1887
• Citation: 31 F. 104
• Parties: MARKELL and others v. KASSON and others.
• Court: U.S. District Court — District of Colorado

31 F. 104

MARKELL and others v. KASSON and others.

United States Circuit Court, D. Colorado.

May 12, 1887

J. D Ward and Clinton Reed, for complainants on original bill.

Patterson & Thomas, for defendants on original bill.

BREWER J.

In No 1,903 this question is presented: There was an ejectment suit to recover possession of some mining property. Auxiliary to that, a bill in equity was filed for an injunction to restrain the working, on which a temporary injunction was issued. Thereafter the defendants filed a cross-bill praying on their behalf, a temporary injunction, and also setting up a contract for the conveyance of a little fraction of ground. The ejectment suit was dismissed. The complainants in the original bill dismissed their bill, and insist that by that dismissal the cross-bill also went out of court. The defendants object, being cross-complainants in their cross-bill, and insist on a right to a hearing, and a decree upon so much, at least, of their bill, as prayed for a specific performance of the contract to convey this little tract of disputed territory. And that is the question which is to be determined,-- whether, when the original bill is dismissed, necessarily the cross-bill goes with it.

There is, of course, a certain sense in which the cross-bill is a part of the original action; it is auxiliary to the original bill. It may be filed to set up new matter, but matter only defensive; and of course in such a case as that, as where the cross-bill simply seeks a discovery, when it was filed in this case seeking affirmative relief, presenting matter not purely defensive in its nature. A familiar illustration is where a mortgagee files his bill making other mortgagees defendants, and they come in, setting up, by cross-bill their mortgages, and praying foreclosure of them. In cases of that kind, does the dismissal of the original bill necessarily take the cross-bill out of court? Neither on principle nor authority can such a claim be sustained. The cross-bill is in one sense an independent proceeding. While it is filed in the original action, yet process must be served, or appearance obtained, before there is any issue upon it; and where the cross-bill sets out matter upon which affirmative relief is sought, and in respect to which testimony is taken, and all the expense of that testimony incurred, it would be unjust to permit the complainant in the original bill to take the whole thing out of court. The statutes of limitation might come in before a new bill could be filed; the difficulties of bringing the parties in the original bill i...