Soderberg v. Armstrong

• Decision Date: 30 June 1902
• Docket Number: 687.
• Citation: 116 F. 709
• Parties: SODERBERG v. ARMSTRONG et al.
• Court: U.S. Court of Appeals — Ninth Circuit

116 F. 709

SODERBERG v. ARMSTRONG et al.

No. 687.

United States Circuit Court, D. Nevada.

June 30, 1902

N Soderberg, for complainant.

Alfred Chartz, for defendants.

HAWLEY District Judge (orally).

This is a suit for an injunction to enjoin the defendants from extracting mineral ore 'from a divided one-half interest to wit, the south one-half, of said mining location and mine in and to that certain piece or parcel of mining ground in said Devil's Gate and Chinatown mining district known as and called the 'Lucky Star Mining Claim,' * * * the said divided part or portion of said Lucky Star, of which complainant is the exclusive owner, being the south one-half thereof, and consisting of all that part of the Lucky Star mine and mining claim which lies outside of and to the south and west of that certain mining claim patented and known as the 'Monarch,' and being 750 feet in length and 600 feet in width, more or less; also an undivided one-sixth interest in and to the remaining, to wit, the north, one-half of said Lucky Star mine and mining claim. ' To the complaint in this suit the defendants interposed a plea in bar, alleging, in substance, that on March 7, 1898, one Jane Laity brought a suit against Alexander Armstrong, William Armstrong, and William Boyce, defendants herein, in the district court of Lyon county, Nev., praying for the same relief, in the same manner, for the same matter, and to the same effect as prayed for herein by complainant's bill of complaint in this suit; that said suit was regularly tried before a jury, testimony introduced, and verdict rendered in favor of the defendants, and judgment entered in accordance with the verdict; that said judgment is still in full force and effect; that after the entry of said judgment, to wit, on the 8th day of November, 1899, Jane Laity sold and conveyed all her interest in the mining property which is identically the same land and mining claim described in complainant's complaint herein; that Alexander Armstrong is the successor in interest of the right of Frank Armstrong, defendant in the suit in the state court. The complainant herein filed a general, instead of a special, replication to the defendants' plea in bar, and it is claimed by defendants that by filing this replication complainant admits the sufficiency of the plea. This is denied by the complainant. He also denies the identity of the subject-matter in the litigation in the two cases, and claims that there is no testimony to show that the defendants in the former suit claimed any interest whatever in the north 750 feet of the Lucky Star mine involved herein, and denies that the judgment in the former suit is res judicata, except as to the ownership of certain ores that were in question in that suit.

The old equity practice upon which the decisions relied upon by defendants were based is modified by equity rule 33. It has frequently been so held. In Pump Co. v. Nichols, 12 C.C.A. 578, 580, 65 F. 215, 217, the court of appeals said:

'Much stress has been laid upon the rule that a replication to a plea admits its validity, and that, if the particular facts stated in the plea be proved to be true, the bill must be dismissed, without reference to the equity arising from any other facts stated in the bill. Farley v. Kittson, 120 U.S. 303, 314, 7 Sup.Ct. 534, 30 L.Ed. 684; U.S. v. California & O. Land Co., 148 U.S. 31, 13 Sup.Ct. 458, 37 L.Ed. 354. A necessary corollary is that strict proof must be made of 'the particular facts stated in the plea,' and it will not be enough to prove less than, or something different from, what is averred. In the federal practice, however, the rule itself has been modified by equity rule 33, which provides that 'if upon an issue the facts stated in a plea are determined for the defendant, they should avail him as far as in law or equity they ought to avail him.' In respect to that rule the supreme court, in Pearce v. Rice, 142 U.S. 28, 42, 12 Sup.Ct. 130, 135, 35 L.Ed. 925, said: ' It clearly takes from the establishment of the plea the effect it had under the old law. When, by filing a replication, issue is taken upon a plea, the facts, if proven, will now avail the defendant only so far as, in law and equity, they ought to avail him. Under the existing rule, the court may, upon final hearing, do at least what, under the old rule, might have been done when the benefit of a plea was saved to the hearing. ' When,' says Cooper, 'the benefit of the plea is saved to the hearing, the decision of the cause does not rest upon the truth of the matter of the plea, but the plaintiff may avoid it by other matter, which he is at liberty to adduce."

In Green v. Bogue, 158 U.S. 478, 499, 15 Sup.Ct. 975, 39 L.Ed. 1061, the court, upon this question, said:

'How far the chancery rule that if a plaintiff replies to a plea in bar, joining issue upon the facts averred in it, thus putting the defendant to the trouble and expense of proving his plea, he thereby admits the sufficiency of the plea, and that, if such facts are found to be true, the bill must be dismissed without reference to the equity arising from any other facts stated in the bill, is affected or modified by rule 33 in equity, * * * was a question put in the opinion of this court in Farley v. Kittson, 120 U.S. 315, 7 Sup.Ct. 534, 30 L.Ed. 684; but its consideration was not deemed necessary to the determination of that case. * * * Undoubtedly, under the rule in the English chancery court, recognized by this court in Hughes v. Blake, 6 Wheat. 534, 472, 5 L.Ed. 303, and in Rhode Island v. Massachusetts, 14 Pet. 210, 10 L.Ed. 423, the plaintiffs would be held to have abandoned their right to have the sufficiency of the plea as a defense to the bill again considered. But ue think that, in view of rule 33, which has been adopted since those cases were decided, the plaintiffs may properly ask this court to review the decree of the court below in respect to the sufficiency of the plea. The inequity of having a case turn on the fate of a plea of perhaps immaterial facts, doubtless led to the adoption of that rule. In Pearce v. Rice, 142 U.S. 28, 12 Sup. 130, 35 L.Ed. 925, the effect of the rule was considered, and it was held that under it the court may, upon final hearing, do at least what, under the old rule, might have been done when the benefit was saved to the

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