Wise v. Nixon

• Decision Date: 24 August 1896
• Docket Number: 620.
• Citation: 76 F. 3
• Parties: WISE v. NIXON et al.
• Court: U.S. District Court — District of Nevada

76 F. 3

WISE v. NIXON et al.

No. 620.

United States Circuit Court, D. Nevada.

August 24, 1896

D. S Truman and Torreyson & Summerfield, for the motion.

Robert M. Clarke, contra.

HAWLEY District Judge (orally).

Complainant moves the court for a decree pro confesso against the defendant George S. Nixon, under the provisions of equity rule 19, upon the ground that on the 3d day of June, 1896 the counsel for complainant entered an order that the bill of complaint be taken pro confesso, and that 30 days have expired since the entry of said order in the rule and order book. The facts, as presented upon this motion, and that defendant was required to plead to said complaint on June 1 1896. On that day his solicitor appeared before the clerk and handed him a demurrer, properly certified by counsel, but without the affidavit of the defendant, as required by equity rule 31, 'that the demurrer was not interposed for delay,' etc. The clerk read this rule to the solicitor, who thereupon took the demurrer, indorsed thereon the proper affidavit, and forwarded the same to defendant Nixon, at Winnemucca, where it was properly signed, and returned to the clerk, and filed June 3, 1896. On June 3, 1896, prior to the filing of defendant's demurrer, counsel for complainant had entered the order for default.

There is no excuse for counsel overlooking or forgetting the distinction which exists between the practice in this court and in the state courts, and between the forms of pleadings required in law and equity cases. It is the duty of the court to enforce the law, and compel parties to conform to the rules and practice of this court. But in the present case counsel for defendant contends that this court has no jurisdiction to enter a decree, for the reason that the suit is not one authorized by law to be brought in the United States courts. The suit is brought to obtain a decree quieting the title to certain mining claims. It was commenced in this court upon the theory that the questions raised by the complaint necessarily involved a construction of section 2324 of the Revised Statutes. Do the averments of the complaint present any question of law calling for the construction of any statute of the United States? After setting forth the necessary facts as to complainant's ownership of the mining claims and sulphur mining ground, it is alleged:

'That said defendants, and each of them, claim an estate or interest therein adverse to your orator, based upon several pretended relocations thereof attempted to have been made about the 1st day of January, 1896, and on the claim and pretense that the assessment work for the year 1895 had never been done on the same, or either of them, and on the further pretense and claim that the original owners, their heirs, assignees, or legal representatives, have not resumed work, and had not resumed work upon the said claims, or either of them, after a failure to perform the assessment work for the year 1895, and before such relocation by said defendants and the hereinafter mentioned grantors of the defendant George S. Nixon and each of defendants of the hereinbefore described property.'

There is a further allegation that certain named parties, Warren and others, made a location of certain placer claims so as to include 160 acres of land, solely in the interest of the defendant Nixon.

These averments present issues of fact, and not of law, viz.: Was complainant in the possession of the mining ground and placer claims at the time of the relocation made by the defendants? Was the assessment work done thereon by the original owner thereof in the year 1895? If the assessment work was not done in that year, did the original owner resume work on the claims, and was he in possession thereof at the time the defendants made a relocation? Did Warren and others locate the placer ground solely for defendant Nixon? The court is unable to determine from the averments of the complaint whether any construction of section 2324 will be necessarily involved in the trial of the case. There is no question of law, and no dispute between the parties as to the amount of work required by section 2324 to be done upon the mining claims in the year 1895. No question of law is presented as to what constitutes resumption of work. The question whether Warren and others made the location of the placer claims solely for the benefit of the defendant Nixon is certainly a question of fact. These things being true, it follows that the averments thereafter made in the complaint 'That the determination of the title, and their rights of, in, and to said premises, involves the construction of a federal statute, to wit, of section 2324 of the Revised Statutes of the United States, or so much thereof as is necessary to determine what constitutes a failure to perform the assessment work upon a mining claim to comply with the conditions of said section, so as to make the same subject to relocation, and when such failure takes place and becomes complete, and what constitutes a resumption of work, in good faith, after a failure to fully perform such work, and before a relocation of a mining claim by other parties or persons; also, as to when such a resumption must take place in point of time to preserve a mining claim from relocation. That the title of said property and the right of the parties hereto depend upon the construction of that part of said section above set forth, and the rights and title of your orator will be defeated by one construction, and sustained by the other construction, of said statute,'-- are mere conclusions of law. To give this court any jurisdiction to the premises, it must affirmatively...