Weber v. Hertzell
| Decision Date | 09 February 1916 |
| Docket Number | 4201. |
| Parties | WEBER v. HERTZELL et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
J. J Shea, of Bartlesville, Okl. (Burdette Blue, of Bartlesville Okl., on the brief), for appellant.
J. P O'Meara, of Tulsa, Okl. (C. B. Ames, of Oklahoma City Okl., and James A. Veasey, of Tulsa, Okl., on the brief), for appellees.
Before SANBORN and SMITH, Circuit Judges, and TRIEBER, District Judge.
This is an action in equity. The bill was filed by Howard Weber December 2, 1912, and on December 9, 1912, the defendant Freeman E. Hertzell filed a demurrer thereto. By rule 81 (198 F. xlii, 115 C.C.A. xlii) of the new equity rules it is provided:
'These rules shall be in force on and after February 1, 1913, and shall govern all proceedings in cases then pending or thereafter brought, save that where in any then pending cause an order has been made or act done which can not be changed without doing substantial injustice, the court may give effect to such order or act to the extent necessary to avoid any such injustice.'
The record does not show whether the demurrer was submitted before or after February 1, 1913, but on September 17, 1913, long after the new rules took effect, the court sustained the demurrer and dismissed the case at plaintiff's cost. Of course demurrers were abolished by the new rules, but we shall assume either that the demurrer was submitted before February 1, 1913, or that the court treated the demurrer as a motion to dismiss under rule 29 (198 F. xxvi, 115 C.C.A. xxvi).
Howard Weber holds so-called drilling contracts from Oliver Bagby and the Vinita & Chelsea Oil Company upon certain lands in Oklahoma. There was litigation concerning these drilling contracts, to which both Weber and Hertzell were parties in the District Court of Washington county, Okl., where the case was decided in favor of Weber. That case went to the Supreme Court of Oklahoma and was there affirmed. Hertzell et al. v. Weber et al., 31 Okl. 5, 120 P. 589. From the opinion in that case a more full statement will be found of the facts in this controversy than we deem it necessary to give here. That case was decided in the district court of Washington county on February 4, 1910, and in the Supreme Court of Oklahoma on November 14, 1911, and a rehearing denied on June 12, 1912. Before the decision in either court, on December 16, 1909, and on January 8, 1910, Hertzell procured warranty deeds of all the land in question from Josie (Moore) Harrison and Etta Mode and their husbands. The grantors in said deeds owned the lands in question, but they had outstanding thereon leases to Oliver Bagby and the Vinita & Chelsea Oil Company for oil and gas purposes, and these lessees had given the drilling contracts to Weber. Subsequently Hertzell brought a suit in ejectment against Weber under these deeds and for damages for the wrongful detention in the District Court of the United States for the Eastern District of Oklahoma. Thereupon the appellant, Weber, filed this bill in equity in the same court against the appellee, Hertzell, seeking to establish certain estoppels against Hertzell and to restrain the prosecution of the action at law by him to recover the land and damages for the wrongful detention. As before stated, the court sustained the demurrer to this bill, and dismissed it, and the plaintiff, Weber, appeals.
The plaintiff claims that the decree in the Oklahoma courts is an adjudication against Hertzell in the new case now pending in the federal court, but the defense of res adjudicata is as much a defense at law as in equity and there is no necessity for a preliminary decree in equity as to that.
The plaintiff also contends that there are certain estoppels by conduct of Hertzell. The allegations in this connection are of estoppels in pais or equitable estoppels.
It has been held by this court that such estoppels can be pleaded in a law case. Anglo-American Land Mortgage & Agency Co. v Lombard, 132 F. 721, 68 C.C.A. 89; Campbell et al. v. Golden Cycle Mining Co. et al., 141 F. 610, 73...
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...species of property, there would seem no reason why its application should be restricted in courts of law."); see also Weber v. Hertzell , 230 F. 965, 967 (8th Cir. 1916) ("It has been held by this court that such estoppels can be pleaded in a law case. The same has been held by the Supreme......
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...Although an estoppel in pais is cognizable as a defence at law See Dickerson v. Colgrove, 100 U. S. 578, 25 L. Ed. 618; Weber v. Hertzell, 230 F. 965 (C. C. A. 8th), plaintiff's motion and its consent to have the issue tried in equity is a waiver of its right to a jury trial As to the negot......
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