Morse v. Lewis, 3221.

• Citation: 54 F.2d 1027
• Decision Date: 12 January 1932
• Docket Number: No. 3221.,3221.
• Parties: MORSE v. LEWIS et al.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

54 F.2d 1027 (1932)

MORSE v. LEWIS et al.

No. 3221.

Circuit Court of Appeals, Fourth Circuit.

January 12, 1932.

Henry Simms, of Huntington, W. Va., and Hite H. Huffaker, of Louisville, Ky. (Charles F. Guenther, Jr., of San Antonio, Tex., on the brief), for appellant.

Robert S. Spilman and George E. Price, both of Charleston, W. Va. (Price, Smith & Spilman, of Charleston, W. Va., on the brief), for appellees.

Before PARKER and SOPER, Circuit Judges, and BAKER, District Judge.

SOPER, Circuit Judge.

The bill of complaint in this suit in equity set up a claim of title to the same tract of 20,000 acres of land in Kanawha county, W. Va., as was the subject of the suit of McMullen v. Lewis, 32 F.(2d) 481, decided by this court on April 9, 1929. The claim in each case rested upon substantially the same allegations of fact, and in each the sufficiency of the allegations was challenged by a motion to dismiss the bill, which was granted by the District Court. In the earlier case, Nelson V. McMullen, the son of John Lewis McMullen, and a grandson of William A. McMullen, alleged that his grandfather had died intestate in 1872, seized of the lands in question, and complained that his heirs at law had been deprived of the property by an award of arbitrators in certain suits in the circuit court of Kanawha county, later confirmed by the judgments of the court; and that these awards and judgments had been wrongfully obtained by fraudulent conspiracy among certain parties to the litigation and their attorneys. The judgments upheld the claims of one John D. Lewis, whose title was derived from an earlier grant than that upon which the McMullen heirs relied. The complainant sought to avoid these judgments, so far as they affected him. In the pending case, Rosa Cooke Morse makes similar allegations and prays similar relief, as the daughter of Rhoda McMullen Cooke, a granddaughter of William A. McMullen.

The case of Nelson V. McMullen was tried in the District Court by Circuit Judge Northcott of this court, upon the designation of the Senior Circuit Judge of the Circuit, which became necessary when the District Judge, considering himself disqualified, declined to sit. Judge Northcott's opinion was set out almost in toto in the opinion of this court, wherein it was approved and affirmed. From these opinions it appears that the bill was dismissed (1) because its averments were not made with the requisite degree of certainty, particularity, and detail to show the fraudulent conspiracy, and (2) because the lapse of fifty years between the entry of the judgments in the circuit court of Kanawha county and the filing of the suit to set them aside was so long that under the circumstances, the complainant and his father were guilty of such laches as effectually barred the prosecution of the suit.

There is no substantial difference between the bill in the suit of Nelson V. McMullen and that in the pending suit in respect to the allegations wherein the fraudulent conspiracy is described. It was pointed out, in the opinion of this court in the prior case, that the exhibits filed with the bill did not support the grave charges therein made, but tended directly to the contrary both in respect to the conspiracy charged and the deception of the arbitrators alleged to have been accomplished. The complainant in the pending case endeavored to avoid the effect of this decision by the simple device of withholding the exhibits from the present record. This palpable omission, however, availed the complainant nothing, for the District Court took judicial notice of the proceedings in the earlier case, and considered the exhibits as if filed with the present bill. That document indeed referred expressly to the suit of Nelson V. McMullen and the decision of this court. We think that the action of the District Court in this respect was eminently proper, for the award of the arbitrators, alleged to have been fraudulently obtained, formed the identical and essential basis of both suits; and it would have been a futile and senseless proceeding, under the circumstances, for the court to have closed its eyes to an undisputed fact shown by its own records.

The general rule undoubtedly is that a court will not travel outside the record of the case before it in order to take notice of the proceedings in another case, even between the same parties and in the same court, unless the proceedings are put in evidence; and the rule is sometimes enforced with considerable strictness. National Surety Co. v. U. S. (C. C. A.) 29 F.(2d) 92; Paridy v. Caterpillar Tractor Co. (C. C. A.) 48 F.(2d) 166. But in exceptional cases, as high authority shows, the dictates of logic will yield to the demands of justice, and the courts, in order to reach a just result, will make use of established and uncontroverted facts not formally of record in the pending litigation. Thus in De Bearn v. Safe Deposit Co., 233 U. S. 24, 34 S. Ct. 584, 58 L. Ed. 833, the Supreme Court, in considering the sufficiency of a bill of complaint on demurrer, took judicial notice of the proceedings and pleadings in cases between the complainant and other parties which it had previously considered; in Dimmick v. Tompkins, 194 U. S. 540, 24 S. Ct. 780, 48 L. Ed. 1110, upon an application for a writ of habeas corpus by a prisoner who claimed that he was being detained in prison beyond the expiration of his term, the court took judicial notice of the record in a prior case wherein it had denied the prisoner's petition for certiorari asking for a review of the sentence imposed, and held that since this record showed that the detention of the prisoner was due to his own efforts to obtain a reversal of the judgment, the writ of habeas corpus should be refused; and in National Fire Ins. Co. v. Thompson, 281 U. S. 331, 50 S. Ct. 288, 74 L. Ed. 881, the court took judicial notice of a fact shown by the record in an earlier case between the same parties, to clear up an uncertainty in the record before it. See also United States v. California Canneries, 279 U. S. 553, 49 S. Ct. 423, 73 L. Ed. 838; Craemer v. Washington, 168 U. S. 124, 18 S. Ct. 1, 42 L. Ed. 407; Bienville Water Supply Co. v. Mobile, 186 U. S. 212, 22 S. Ct. 820, 46 L. Ed. 1132; Ingersoll v. Coram, 211 U. S. 335, 29 S. Ct. 92, 53 L. Ed. 208; Coram v. Davis (C. C.) 174 F. 664; Freshman v. Atkins, 269 U. S. 121, 46 S. Ct. 41, 70 L. Ed. 193; Butler v. Eaton, 141 U. S. 240, 243, 11 S. Ct. 985, 35 L. Ed. 713; E. I. Du Pont de Nemours & Co. v. Richmond Guano Co. (C. C. A.) 297 F. 580. It follows that the prior decision of this court as to the sufficiency of the allegations of the bill applies with equal force in the pending case.

Even if we should ignore the contents of the exhibits which were before this court in the case of Nelson V. McMullen, we could not accept as sufficient certain allegations which constitute important elements of the conspiracy charged in the bill. It is there alleged that the conspirators concealed and withheld from the arbitrators the record of the circuit court of Kanawha county in two cases between the McMullen and the Lewis interests relating to the lands in controversy, wherein the McMullen title was established and the invalidity of the Lewis claim was shown. But the bill also shows that the judgments in these two cases were appealed to the Supreme Court of West Virginia, and that the decisions of that court were published in its official reports as Lewis v. McMullin, 5 W. Va. 582, and McMullin v. Lewis, 5 W. Va. 145; and that a number of other suits between the same interests were held in abeyance pending the decision of these appeals. The decisions were handed down in 1872, and the volume, 5 West Virginia, was published in 1873 before the arbitration took place. The arbitrators themselves were lawyers, who of course must have had access to the reports. The decisions do not establish the McMullen as opposed to the Lewis title in the large tracts of land in dispute; and the more important of the two cases was sent back for retrial. The bill makes no attempt to show how it would have been possible to have concealed from the arbitrators published decisions of the highest court of the state relative to the very controversy which the arbitrators were selected to determine. A conspiracy should be alleged with such particularity as to show an unlawful agreement between the parties charged; but in this case the allegations that the arbitrators were deceived by the fraudulent withholding of information are so inconsistent with other allegations of the bill, that the court cannot accept them as proved on this motion to dismiss.

It is likewise true that the observations of this court in the case of Nelson V. McMullen v. Lewis, on the subject of laches, are applicable here. The pending bill shows that Rhoda McMullen Cooke, the mother of the complainant, lived at Owensboro, in the neighboring state of Kentucky, until 1885; that is to say, for thirteen years after her father's death, and eight years after the entry of the judgments complained of. Thereafter she lived for twenty-three years until her death in 1908 at Dennison, in the state of Texas. During all of this period, she took no steps to investigate the matter now brought before the court. The explanation of this inaction during thirty-one years in this case is as unsatisfactory as that offered in the earlier case for the delay of forty-two years, during which the father of Nelson V. McMullen lived, after the arbitration was concluded. It is true that the bill alleges that Mrs. Cooke knew nothing about the location of the lands in question and was not a party to the arbitration, but there is no allegation, and doubtless could be none, that she had no...