Woodward v. McConnaughey

• Decision Date: 11 February 1901
• Docket Number: 621.
• Citation: 106 F. 758
• Parties: WOODWARD v. McCONNAUGHEY.
• Court: U.S. Court of Appeals — Ninth Circuit

106 F. 758

WOODWARD v. McCONNAUGHEY.

No. 621.

United States Court of Appeals, Ninth Circuit.

February 11, 1901

T. O Abbott, for appellants.

William H. Brinker and Richard Saxe Jones, for appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The appellants were the complainants in a bill brought to set aside a tax title to their property acquired by J. W McConnaughey, one of the appellees, and to rescind and set aside a quitclaim deed of said property made to the said McConnaughey by the appellants, on the ground that it was made under mistake, and induced by fraud. The defendants demurred to the bill upon several grounds, one of which was that it appeared from the allegations of the bill that one Isabel C. Jones was a necessary party to the suit, but was not made a party thereto. The demurrer was sustained and at the same time the complainants were given leave to amend the bill within 30 days thereafter. They failed to amend within the time specified, and thereupon a decree was entered dismissing the bill. From that decree the present appeal is taken.

A motion is made to dismiss the appeal upon the ground that the appellants had waived their right to appeal from the final decree by requesting leave to amend or to plead further after the court had sustained the demurrer to their bill. In support of the motion the appellees cite McElwain v Willis, 9 Wend. 548; Mayor, etc., v. Kent (Super N.Y.) 4 N.Y.Supp. 802; Austin v. Wauful (Sup.) 13 N. Y. Supp. 184; Supply Co. v. Brand, 7 Wash. 357, 35 P. 72; and Hall v. Skavdale, 21 Wash. 203, 57 P. 807. We think the motion should be denied. The appellants are not in the attitude of availing themselves of the decree of the circuit court, and at the same time appealing from it. The evidence of a waiver of the right to appeal must be clear and decisive. 2 Enc.Pl. & Prac. 173, and cases there cited. All that the appellee can claim from the record in support of their motion to dismiss is that at the time when the court ruled upon the demurrer the appellants obtained an order permitting them to amend their bill within a specified time, and that at the end of that time, instead of availing themselves of the permission, they elected to stand upon the bill as it was, and that thereupon the bill was dismissed. It was not dismissed for want of prosecution or for default of the appellants, as was the case in the Washington decisions cited by the appellees. The effect of the dismissal is substantially the same that it would be if there had been no permission to amend, and the decree had been entered immediately upon the order sustaining the demurrer.

Concerning the interest of Isabel C. Jones in the subject of the controversy, the bill alleges that prior to February 24 1895, certain mechanics' liens, amounting to $8,384, were filed against the property in litigation, and that on that date suit was brought to foreclose the same; that a decree foreclosing said liens was rendered, and that the decree and all rights thereunder were purchased by and assigned to Isabel C. Jones; and that thereafter, in pursuance of said decree, the property was sold and conveyed to the said Isabel C. Jones. The appellants contend that Isabel C. Jones is shown to be an unnecessary party to the suit by other averments of the bill, which allege that the money to purchase said decree was furnished her by J. W. McConnaughey, and that she was a nominal purchaser only, and was in reality acting as trustee for McConnaughey, and that the transaction was carried on in her name solely for the purpose of concealing the facts, and that McConnaughey is a trustee for the appellants under said decree, execution, and sale. These allegations do not change the aspect of the case so far as it concerns the necessity of making Isabel C. Jones a party. The complainants cannot aver that the...