Wiseman v. Eastman

• Decision Date: 09 May 1899
• Citation: 21 Wash. 163,57 P. 398
• Parties: WISEMAN v. EASTMAN et al. (DOOLY, Intervener.
• Court: Washington Supreme Court

57 P. 398

21 Wash. 163

WISEMAN v. EASTMAN et al. (DOOLY, Intervener.

Supreme Court of Washington

May 9, 1899

Appeal from superior court, Walla Walla county; Thomas H. Brents Judge.

Action by Benjamin F. Wiseman against Thomas R. Eastman and others. John Dooly intervenes. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Edgar Lemman, for appellant.

Thomas & Dovell and B. L. & J. L. Sharpstein, for respondents.

Lester S. Wilson, for intervener.

FULLERTON J.

The appellant, who was plaintiff below, brought this action in the superior court of Walla Walla county against the respondents to charge them as trustees of certain lands situated in that county, and to compel a conveyance of the same to himself. The court below sustained a demurrer to the original complaint of appellant, and demurrers to his amended complaints severally, up to and including the third upon which the appellant elected to stand. Thereupon judgment for costs and of dismissal was entered. From that judgment this appeal is taken.

The respondents move to dismiss the appeal, and a motion to dismiss is also filed by one John Dooly, appearing here specially for that purpose, who claims to be an intervener in the case. It appears by the record that after the action was commenced, and while a demurrer was pending to the original complaint in the court below, the purported intervener served upon the appellant a complaint in intervention, claiming an interest in the lands in question adverse to the claims of all of the original parties to the action. The record does not disclose that the lower court made any order permitting an intervention in the action although the complaint in intervention recites that leave to intervene was first had. Immediately after the service upon him of the complaint in intervention, the appellant served and filed a demurrer thereto, and the matter was suffered to rest, without further action by either of the parties, while the contest was being waged between the appellant and the respondents over the sufficiency of the original complaint and the sundry amended complaints of the appellant. After the judgment upon the demurrer was entered, but prior to the time the notice of appeal therefrom was served, the original complaint in intervention was filed. The record further shows that an amended complaint in intervention was filed at some time after the notice of appeal was served and filed, and that the appellant thereupon moved to strike from the files of the cause both of the complaints, which motion, after hearing, was allowed by the court. The notice of appeal was not served upon the purported intervener, and it is for this reason that a dismissal of the appeal is asked. The respondents contend that by demurring to the complaint in intervention the appellant waived his right to object that the intervener was not properly in the case, that such action on his part amounted to a recognition of the right of Dooly to intervene, and that Dooly thus became a party to the cause, upon whom a notice of appeal must be served in order to give this court jurisdiction to hear and determine this appeal; citing Commercial Co. v. Wotton, 14 Wash. 87, 43 P. 1095, and Old Nat. Bank v. O. K. Gold Min. Co., 19 Wash. 194, 32 P. 1065.

In the case of Commercial Co. v. Wotton there was a direct recognition of the intervener as a party to the cause by the trial court, as well as by the plaintiff and defendant, and the complaint in intervention was filed with the clerk of the court. The only defect appearing in the record being the absence of a formal order allowing an intervention. In the case of Old Nat. Bank v. O. K. Gold Min. Co. the point determined was that a withdrawal by the interveners from the cause, after notice of appeal was served, did not cure the failure to serve them with notice while they were parties to the cause. These cases are not in point in the present action. The record here not only fails to show any leave of court to intervene, but affirmatively shows that the complaint in intervention was not filed until after the cause had been finally adjudicated between the plaintiff and defendants. The right of the parties to intervene in an action in this state is statutory, and the statute must be substantially pursued in order to perfect the right. The statute provides (section 4846, Ballinger's Ann. Codes & St.): 'An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by a complaint setting forth the grounds upon which the intervention rests, filed by leave of the court or judge on the ex parte motion of the party desiring to intervene.' In order to make an interventon effectual, under this provision of the statute, it is necessary not only that leave to intervene be had, but also that the complaint in intervention be filed in the cause while the action is pending between the original parties. A bare service of the complaint upon the opposing parties is not a compliance with the statute, and we are compelled to hold that in this case the filing came too late. And this would be so even had leave to intervene been obtained while the action was pending. The motion to dismiss is denied.

The amended complaint shows that the land described therein, and which is the subject of the present controversy, originally formed a part of the grant made to the Northern Pacific Railroad Company by the act of congress of July 2, 1864, and was forfeited to the United States by the act of congress of September 29, 1890. It is further shown that the appellant, on the 18th day of May, 1891, made application and was allowed to make a homestead entry upon the land before the local land officers at Walla Walla; that he paid the entrance fee required by law, and attempted to take possession of the land; that the respondent Eastman, claiming a preference right to purchase the land under the terms of section 3 of the forfeiture act, instituted a contest against the appellant to cancel his entry; that the appellant had due notice of the contest, and an opportunity to defend; that he did defend; and that the contest ran its course in the prescribed way through the land department, being finally decided by the secretary of the interior in favor of Eastman. By this action the appellant seeks to set aside and annul the conclusion and judgment of the land department, and have the court find that the lands which were awarded to Eastman should have been awarded to him, and decree a conveyance from the present holders of the legal title to himself. The appellant separated his complaint into two causes of action, in the first of which he attacks the judgment of the land department for fraud, imposition, and false testimony which he alleges was practiced upon the land officers by the successful party, by reason of which a wrong conclusion of fact was reached; and in the second, for mistake of law made by the secretary of the interior, by reason of which the lands were patented to Eastman, when, he contends, if the secretary had correctly construed the law applicable to the case, the lands would have been patented to himself.

The extent of the authority of the courts to review the decisions of the land department, and for what causes patents to land will be set aside, or a trust declared, by the courts, has frequently been a subject for judicial determination. While it is settled that the power exists, the courts have always been slow to exercise it. Indeed, our attention has been called to no case where a patent has been set aside, or a trust declared, where the charge was fraud, imposition, or false testimony practiced upon the land department. On the other hand, where the charge was mistake or misconstruction of law, the courts have exercised more liberality, though even here it is held the mistake or misconstruction must be clearly manifest, and not founded upon a possible finding of the facts different from that put upon them by the land department. The doctrines governing this branch of the law can be no better stated than by citations from the authoritative cases.

In Quinby v. Conlan, 104 U.S. 420, Mr. Justice Field speaking for the court, said: 'It would lead to endless litigation, and be fruitful of evil, if a supervisory power were vested in the courts over the action of the numerous officers of the land department on mere questions of fact presented for their determination. It is only when those officers have misconstrued the law applicable to the case, as established before the department, and thus have denied the parties rights which, upon a correct construction, would have been conceded to them, or where misrepresentation and fraud have been practiced, necessarily affecting their judgment, that the courts can, in a proper proceeding, interfere and refuse to give effect to their action. On this subject we have repeatedly and with emphasis expressed our opinion, and the matter should be deemed settled. Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U.S. 330-340; Moore v. Robbins, 96 U.S. 530. And we may also add in this connection that the misconstruction of the law by the officers of the department, which will authorize the interference of the court, must be clearly manifest, and not alleged upon a possible finding of the facts from the evidence different from that reached by them; and, where fraud and misrepresentations are relied upon as ground of interference by the court, they should be stated with such...