Oro Fino And Morning Star Mining Co. v. Cullen

• Decision Date: 01 January 1867
• Citation: Oro Fino And Morning Star Mining Co. v. Cullen, 1 Idaho 113 (Idaho 1867)
• Parties: Oro Fino And Morning Star Mining Company, Respondents, v. Patrick J. Cullen Et Al., Appellants.
• Court: Idaho Supreme Court

1 Idaho 113

Oro Fino And Morning Star Mining Company, Respondents, v. Patrick J. Cullen Et Al., Appellants.

Supreme Court of Idaho

January 1, 1867

PRACTICE.-For the sake of harmonizing the practice in legal and equitable cases, and to give effect to the spirit of our code, we incline to the opinion that the practice is, to proceed against a decree in order to annul or set it aside in the same manner as against a judgment entered in a court of law.

IDEM-DISSOLVING INJUNCTION.-A party denying the allegations of a bill in equity, and desiring to procure the dissolution of an injunction on the ground of having denied the equities of such bill, must controvert directly every material allegation of such bill; he must not undertake to set up new facts, must not confess and avoid. It must simply be a plain, direct unequivocal denial.

IDEM.-When the whole equity of the complaint is denied by the answer the defendant is entitled to a dissolution of the injunction pendente lite until the plaintiff's title is established by proper evidence on the hearing of the cause. But to have this effect the denial of such equities must be full and specific, and must cover the whole ground.

IDEM.-If facts are admitted which qualify a general denial; if the denials be evasively made; or if, on examination of the circumstances, the court deem that the facts warrant the continuance of the injunction, notwithstanding a formal denial may have been made, the rule will not be applied.

PARTIES-AMENDING BY ADDING PARTIES.-The district court has the right at any time to call in other parties, or to cause the proceedings to be amended in that particular by striking out or adding the names of any parties, which may be necessary to accomplish the ends of justice and secure the interests of all.

APPEAL from the Third Judicial District, Owyhee County.

Ed Nugent, for the Appellants.

1. The rule that questions must be disposed of in the order in which they arise applies in this instance to proceedings

in limine. The proposition that a judge cannot trespass upon the province of a court and pass upon a demurrer is not disputed by the appellants, but it is contended that no result can prevent a collateral proceeding being governed by the rules to which it owes its origin. As in the former equity practice, so under the statute a demurrer is a thing unknown, and cannot be regarded upon an application for a dissolution of an injunction. If granted before answer filed, the defendant, when moving to dissolve, can proceed upon bill, answer, and affidavits, or upon either of them, and is precluded from introducing anything in the nature of a dilatory plea. The demurrer is not only excluded, but is useless, since, whether demurred to or not, the bill must show sufficient grounds for relief, and this notwithstanding the fact that an answer has been filed. It is urged by appellants that the injunction should have been dissolved for the following reasons: 1. An answer was on file at the time, in which was denied specifically all the material allegations of the bill; 2. The bill itself made no sufficient showing for an injunction; 3. The proceedings enjoined was the execution of a decree obtained in the same suit. Martin & Johnson, for the Respondents.

1. No motion to dissolve an injunction can be sustained upon a demurrer, which admits all the facts, unless there is an utter want of a cause of action set out.

2. If there should be some defect in the complaint, but if the court can see that a good cause of action did exist, and that it was a proper one for injunction, the court would sustain the injunction and permit amendments.

3. The motion being made on the demurrer, it is the only paper which can, under our practice, be considered, because one party cannot be permitted to say at the same moment the complaint is true and is not true, and assign to the court two utterly repugnant reasons for its action. The law requires issues of law to be first determined. The course appellants propose produces a singular phenomenon at law; they would have the benefit of the demurrer and we not.

4. The answer, if considered, is insufficient and inconsistent.

The liens and the judgment upon them were illegal and fraudulently taken, for the purpose of charging one portion of joint property and by the sale of that portion relieve the other co-debtors.

5. The enforcement of the lien against the complainants would be a violation of an equitable rule that where two persons have each a security upon a single fund, and one of them has security upon another fund, he will be restrained from enforcing his security out of the fund which the two securities are on to the prejudice of the other creditor. (Authorities referred to by respondents' counsel as to the effect of a demurrer: 1 Van Sant. Pl. 649, 651, 668; Van Sant. Prec., note, 371; Abb. Prec., note, 41; Practice Act of Idaho Territory, sec. 156; Story Equity Pl. 452; Selkirk v Board of Supervisors of Sacramento Co., 3 Cal. 323; Tuolumne Water Co. v. Chapman, 8 Cal. 397; Barbour on Parties, 62; Cutler v. Wright, 22 N.Y. 472. As to pleadings and answer: Van Sant. Pl. 418; Hensley v. Tartar, 14 Cal. 508; Blankman v. Vallejo, 15 Cal. 644; Curtis v. Richards, 9 Cal. 38; Burke v. Table Mountain Co., 12 Cal. 407; Baker v. Baker, 13 Cal. 87; Verzan v. McGregor, 23 Cal. 339; Nelson v. Murray, 23 Cal. 338; Brown v. Scott, 25 Cal. 196; People v. Supervisors San Francisco, 27 Cal. 655; Landers v. Bolton, 26 Cal. 393.)

McBRIDE, C. J.,

delivered the opinion of the court,

CUMMINS J., concurring.

The facts in this case as shown by the pleadings, are as follows: More & Fogus, the grantors of the plaintiff in this suit, were the owners of an undivided five hundred and sixty-two and one-half feet of one thousand feet in the Oro Fino quartz lode in Owyhee county, Idaho territory, and as such were in the control and management of the mine. The defendants in this suit, claiming to be workmen and contractors under the mechanic's lien law, had filed their liens, amounting to over twenty-two thousand dollars, upon the improvements and works of More & Fogus in and upon said mine. On the eighth day of October, 1866, and after a suit for foreclosure of these liens

had been commenced by the defendants in the present suit, More & Fogus, having failed in business, made a transfer of their interest in this mine, together with other property, to plaintiff in this action. It appears that the plaintiff in this suit, without asking to be made defendant in the suit upon the mechanic's liens, had employed counsel to defend that action under some arrangement with More & Fogus to that effect, but upon the day set for hearing, the counsel thus engaged were dismissed by More & Fogus, who were then only nominal defendants and withdrawing the defense which had been interposed by this plaintiff, the parties took judgment for the enforcement of their liens, and a decree ordering the sale of the improvements in the Oro Fino mine was duly entered. Shortly after the defendants took out an execution for the sale, and the sheriff was proceeding thereunder, when the plaintiff brought the present action to restrain the sale, to have the liens set aside and annulled, and that the defendants be enjoined from the benefits of said decree of foreclosure and sale.

As the ground of this relief the plaintiff claims that it is the owner of all the right and title of the said More & Fogus, to wit, the owner of five thousand and sixty-two and one-half feet of one thousand feet of the Oro Fino mine by deed of transfer of October 8, 1866; that by an agreement with its grantors, the suit being at the time pending, the plaintiff was to employ counsel to attend to the trial of the rights of the parties, and that the plaintiff did so employ counsel; that on the day fixed for the hearing the said More & Fogus came into court, dismissed the counsel so employed by plaintiff, substituted other counsel by whom no defense was made, and judgment was taken upon confession against said More & Fogus, and a decree entered thereon ordering the enforcement of the liens.

The plaintiff alleges that this decree was obtained in fraud of its rights by collusion between More & Fogus, who were at the time of its rendition only nominal...