United States v. Rio Grande Dam & Irrigation Co.

• Decision Date: 02 March 1906
• Citation: 13 N.M. 386,85 P. 393
• Court: New Mexico Supreme Court
• Parties: UNITED STATESv.RIO GRANDE DAM & IRRIGATION CO. et al.

13 N.M. 386

85 P. 393

UNITED STATES

v.RIO GRANDE DAM & IRRIGATION CO. et al.

Supreme Court of the Territory of New Mexico.

March 2, 1906.

Appeal from District Court, Third District; before Justice Frank W. Parker.

Action by the United States against the Rio Grande Dam & Irrigation Company and another to restrain defendants from constructing certain dams, reservoirs, and ditches for the diversion of the waters of an alleged navigable river. From a judgment for plaintiff, defendants appeal. Affirmed.

This cause was remanded a second time to the district court of the Third judicial district by the Supreme Court of the territory, April 28, 1902, under a mandate from the Supreme Court of the United States (22 Sup. Ct. 428, 46 L. Ed. 619), by which court the same had been reversed and remanded for the second time, for further proceedings therein. On the 7th day of April, 1903, and during a regular term of said court, the appellee applied for and obtained leave to file a supplemental complaint, and upon the same day filed the same. The record shows that upon the same day the supplemental complaint was filed the same was served upon A. B. Fall, Esq., one of the attorneys of record of the appellants. On the 21st day of May, and 44 days after the supplemental complaint was filed and served upon appellants' counsel, no answer or other pleading being filed, the court rendered the following decree of forfeiture and injunction, in favor of the appellee: “This cause coming on to be heard upon the motion of the plaintiff, by the United States attorney, W. B. Childers, Esq., and it appearing to the court that a supplemental bill was filed herein, by its leave, on the 7th day of April, A. D. 1903, and that copies of the said bill were served more than 30 days past upon the attorney of record of the defendants in said cause, and it further appearing from the certificate of the clerk of the said court that no demurrer, answer, or other pleading has been filed to said supplemental bill by the defendants in said cause, and the court being fully informed in the premises, the court does find that the allegations of said supplemental bill are confessed and are true; and further specially finds that the articles of incorporation and the map survey of the reservoir of the defendant corporation, the Rio Grande Dam & Irrigation Company, were filed with the Secretary of the Interior prior to the 26th day of June, A. D. 1897, and were prior to said date approved by the Secretary of the Interior; and it further finds that the said defendants have not completed its said reservoir or said ditch, or any section thereof, within five years after the location of the said reservoir and its said ditch line, or within five years after the approval of the same by the Secretary of the Interior; and the court further finds that five years since the filing and approval of the said articles of incorporation, proof or organization, maps and surveys of the said reservoir and ditch line of the defendants had long since lapsed prior to the filing of the said supplemental bill, and that the defendants had not compiled with the requirements of the act of Congress approved March 3, 1901, under which the same were filed, but has failed to construct or complete within the period of five years after the location of the said canal and reservoir any part or section of the same. Whereof, it is ordered, adjudged, and decreed by the court that the rights of the said defendants, or either of them, to construct and complete the said reservoir and said ditch, or any part thereof, under and by virtue of the said act of Congress of March 3, 1901, be and the same are hereby declared to be forfeited. It is further ordered, adjudged, and decreed by the court by reason of the premises that an injunction be, and the same is hereby granted, against the said defendants, enjoining them from constructing or attempting to construct the said reservoir, or any part thereof, and that the same be made perpetual.” An error having been made in the decree as to the date of the approval of the act of Congress, in that it was given as “1901,” whereas it should have been 1891, an amended decree was entered nunc pro tunc inserting “1891,” instead of “1901,” that said decree would conform to the allegation of the supplemental complaint. The original decree, thus amended, was re-entered at length on the 5th day of October, 1903, during a regular term of said court; no appearance or action of any kind having been taken by appellants up to this time.

On the 31st day of October, 1903, a motion was filed by counsel for appellants, Messrs. Klock & Owen, to vacate and set aside the order of April 7, 1903, allowing the supplemental complaint to be filed; to open the default; to vacate and set aside the decree and amended decrees of the court, and for permission to file answer which was tendered with said motion. Long affidavits of Nathan E. Boyd and Allen Wood Ellington, stockholders of appellant corporation, were filed in support of the motion. The answer, which was also verified, raises substantially the same issues sought to be raised by the motion, and denies appellee's right to relief by way of supplemental complaint for reasons preserved in the assignments of error. On the 29th day of January, 1904, the court overruled the motion and entered the following order: “This cause coming on to be heard upon the motion of the defendants, the Rio Grande Dam & Irrigation Company and the Rio Grande Land & Irrigation Company, Limited, to vacate and set aside the order entered in this cause on the 7th day of April, A. D. 1903, at Las Cruces, Dona Ana county, New Mexico, granting to the plaintiff herein the privilege and right to file a supplemental bill of complaint in this cause, and praying leave of the court to oppose said motion for leave to file said supplemental bill of complaint and permit the defendants to have a hearing thereon, and that the order granting to the plaintiff herein the privilege and right to file said supplemental bill of complaint be vacated and set aside upon the ground that the court had no power to permit the plaintiff to file said supplemental bill of complaint, and praying that the decree entered in this cause upon the default of the defendant in answering the said supplemental bill of complaint be vacated and set aside and declared to be of no effect, and that the amended decree in this cause filed in this court on the 5th day of October, 1903, upon said plaintiff's application, be vacated and set aside and held of no effect, said decree having been granted upon defendants' default to answer said supplemental bill of complaint, and that the defendants herein, should this court determine not to relieve said defendants from that default upon said motion of plaintiff, or file said supplemental bill of complaint, be permitted to come in and answer said bill of complaint and present their issues on the merits of said supplemental bill of complaint, and to relieve the defendants from their default therein, and that the defendants have such other and further relief as to this court may seem just and equitable. And the court, having heard counsel for the plaintiff and defendants and being fully advised in the premises, doth find that the motion for leave to file said supplemental bill of complaint was served upon the attorneys of record of the said defendants, and that there was no irregularity in the filing of said supplemental bill of complaint, and that it has no power to set aside the decree entered upon said bill at this time upon said application, doth overrule said motion.”

The filing of a supplemental complaint which in no sense states a new cause of action does not require service of a new process on defendant, where the supplemental pleading is filed in open court and a copy served on one of the defendant's attorneys of record.

Klock & Owen, for appellants.

William B. Childers, U. S. Atty.

McFIE, J.

A large number of errors are assigned, but they may fairly be grouped into four, namely: (1) The court erred in permitting the supplemental complaint to be filed. (2) The court erred in rendering decree upon default of appearance and answer within the time allowed by law. (3) The court erred in its order modifying original decree nunc pro tunc. (4) The court erred in overruling motion to vacate said order and decrees and to reopen said cause for the filing of an answer.

As to the first objection, it would seem to be a sufficient answer that, at the time the court granted appellee leave to file the supplemental complaint, the court was in session during a regular term. It was not a vacation order, therefore, but one made in open court. This is a matter of practice and governed by the Code of Civil Procedure. Subsection 104 of the Code, as amended by chapter 11, p. 29, Laws 1901, provides that: “Any hearing of any kind, whether interlocutory or final, unless trial by jury is necessary, may be had in any case out of regular term time upon five days' notice, in writing to the opposite party, or his attorney or solicitor, but the court or judge may, upon application, for good cause shown, extend the time of hearing. Such hearing may be had during the term of court at any time in the discretion of the court.” Counsel for appellants insists that it was error for the court to allow the filing of the supplemental complaint without notice. The section above referred to provides for notice of five days for hearings in vacation, but there is no such requirement as to hearings in open court during a regular term. The record discloses that this cause had been pending in the court for almost one year, awaiting further proceedings, and Mr. Boyd in his affidavit admits Mr. A. B. Fall and Mr. W. A. Hawkins were attorneys of record for appellants at the time the supplemental complaint was filed. The record further shows that the supplemental complaint was served upon...