Zweifel v. State ex rel. Brimmer, 4194

• Decision Date: 04 January 1974
• Docket Number: No. 4194,4194
• Citation: 517 P.2d 493
• Parties: Merle I. ZWEIFEL, Appellant (Defendant below), v. STATE of Wyoming, on the relation of Clarence A. BRIMMER, Attorney General of the State of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 493

517 P.2d 493

Merle I. ZWEIFEL, Appellant (Defendant below), v. STATE of Wyoming, on the relation of Clarence A. BRIMMER, Attorney General of the State of Wyoming, Appellee (Plaintiff below).

No. 4194.

Supreme Court of Wyoming.

Jan. 4, 1974.

Edward L. Grant of Osborn & Grant, Cheyenne, for appellant.

Clarence A. Brimmer, Atty. Gen., William M. Sutton, Sp. Asst. Atty. Gen., Cheyenne, for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and McCLINTOCK, JJ.

Mr. Justice McCLINTOCK delivered the opinion of the Court.

Merle I. Zweifel appeals from the order of the District Court of Laramie County, Wyoming, granting default judgment to plaintiff. The order for this judgment was entered October 31, 1972, after defendant had failed to file answers or objections to interrogatories of the plaintiff served on defendant on May 3 of that year. Defendant asserts upon appeal that his motion to dismiss the complaint and a subsequent motion to vacate the default judgment, filed November 6 and denied by order entered after notice on appeal had been filed and served, should have been sustained. ¹

The complaint first states that the action is initiated by the state of Wyoming through its attorney general, in its own behalf and in behalf of its residents and citizens who own lands and minerals the title of which has been or may be affected by the activities of the defendant. Legal authority to institute the action is said to In brief synopsis, the factual allegations are that the defendant has filed and will continue to file placer mining claims in the offices of several of the county clerks of the state ⁴ on large tracts of 'public and private' lands within the state, which claims purport to claim interest in and to minerals 'underlying lands belonging to the State of Wyoming, as well as Federal and private lands' and lands belonging to the municipal city of Cheyenne; that in addition to filing these claims and in order to maintain and perpetuate the same under the mining laws of the state of Wyoming and the United States defendant has filed and will continue to file affidavits of assessment; that in the course of 'making blanket mining claims upon thousands of acres of lands' ⁵ within the state the defendant 'has failed and will continue to fail to comply' with statutory prerequisites set forth in § 30-10, W.S.1957, ⁶ requiring that before filing the location certificate the discoverer of valuable minerals must locate his claim by fixing upon each claim a notice containing the name of the claim and locator, the date of the discovery and the number of acres claimed, and must in addition place substantial posts or stone monuments marking the corners of the claim on the ground; that by reason of such failure to comply with the statute the claims are invalid and of no force and effect.

rest on § 9-132, W.S.1957 ² and venue of the action in Laramie County is said to be justified by § 1-36, W.S.1957. ³

The complaint further alleges that there is no provision of Wyoming law for the acquisition of an interest in minerals belonging to the state of Wyoming or in private ownership by filing mining claims; that the claims filed by defendant are without any right whatsoever; that defendant has no estate or interest in the minerals or the surface of these private and state lands and no possessory right therein, but that the claims constitute a cloud upon such state and private ownership.

It is further alleged that defendant has sold and intends to sell interests in said invalid mining claims, which sale to the general public is contrary to the best interests The prayer of the complaint asks first that defendant be required to appear and set forth the nature of his claims and that all his claims adverse to the state, its citizens and municipalities be determined by decree; second, that defendant be enjoined from further filing any placer mining claims to lands and minerals belonging to the state, its citizens and municipalities and from filing affidavits of assessment work to maintain and perpetuate said claims. The third prayer is that defendant be required at his cost

of an uninformed public and landowners within the state; that if defendant is permitted to hold, maintain, and deal in mining claims filed by him and to continue to file such claims on state and privately owned lands within the state, and is permitted to perpetuate his claims already filed, the citizens of the state will suffer irreparable harm and injury; and that if defendant continues to perform assessment work as he purports to have done, and goes upon the lands as required by law, a trespass will occur upon the lands of the state and its citizens to their further irreparable harm and injury. ⁷

'* * * to file a release of claim to any and all claims which may have been invalidly filed by him within the State of Wyoming, and that in the event of failure by him so to do, a decree of this Court may provide for the release of any such claims;'

and finally the plaintiff prays such other and further relief as the court may deem equitable.

Pursuant to stipulation of the parties and order of court fixing time to plead, defendant on April 13, 1972 filed a motion to dismiss, and on April 14 filed separate motions for more definite statement and to strike paragraph (a) of the prayer of the complaint. The motion to dismiss is based upon the grounds that the state has no standing to sue with respect to any lands other than its own; that there is improper venue; that the court fails to have jurisdiction over the subject matter of the complaint; and that the complaint fails to state a claim against defendant upon which relief can be granted.

On May 3 the State served interrogatories on defendant's attorney seeking a considerable amount of specific information, which interrogatories had not been answered or objected to by defendant by June 8, on which date all the motions were argued and the court then signed an order entered June 13, reserving action upon the motions for definite statement and to strike until after the interrogatories had been answered, denying the motion to dismiss, allowing defendant 20 days in which to file answer to the complaint, and allowing him until July 8 to file answers to interrogatories.

An answer was filed within the time fixed, denying the allegations of the complaint 'for the reason that they are not true or that the Defendant does not know whether or not they are true and therefore denies the same', again raising the question of jurisdiction and venue, asserting that the mining claims are valid and legal, and that the state of Wyoming is not irreparably harmed by the actions of defendant wherefore he should not be enjoined from further filing placer claims within the state, wherefore the complaint should be dismissed.

Defendant again failed to answer or object to the interrogatories and on July 14 plaintiff served and filed a motion for default judgment. By order of the court entered July 21 this motion was set for hearing on August 4. Presumably the matter was heard on that date, but no written order The order of October 31 directs that all of the material allegations of the complaint be taken as true, the answer of the defendant be stricken, and that judgment as by default be entered in plaintiff's favor. Reciting that the State had previously been ordered to file affidavits establishing the truth of the allegations in the complaint, ⁹ which affidavits had been considered by the court, it was ordered that all placer mining claims filed by the defendant, his agents, or employees, within the state of Wyoming,

was entered until October 31. This order recites that the matter was heard on argument of both counsel, and that defendant had failed to file answers or objections to the interrogatories of plaintiff filed May 5 and to file answers within 30 days after the entry of order for such answers entered June 13. It is also expressly recited that defendant 'has neither sought relief from answering said interrogatories nor shown to this Court any justification for such failure to file answers.' ⁸

'be and are hereby declared to be invalid unless the Defendant shall prove unto this Court that said placer mining claims were filed pursuant to complete compliance with the laws of the State of Wyoming,' (Emphasis supplied.)

and that until he should prove such complete compliance with the law defendant was enjoined from filing affidavits of assessment work or affidavits seeking to defer assessment work. Further, the defendant is enjoined from filing any placer mining claims on lands and minerals within Wyoming 'unless such claims are established and filed pursuant to complete compliance with the laws of the State of Wyoming.' The order was declared to apply to all placer mining claims filed by the defendant involving lands within the state of Wyoming, including federal, state, county, municipal, and privately owned lands. ¹⁰

Following entry of this default judgment and on November 6, defendant filed separate motions to strike affidavits and to vacate the default judgment. This latter instrument asserts that the judgment is contrary to law and to the evidence; that there was excusable neglect on the part of defendant in failing to file the answers, incorporating an affidavit of the defendant attached to the motion; that the judgment is void for want of proper venue and lack of Jurisdiction of the District Court of Laramie County because there were no involved lands located in that county; that an attached certified copy of complaint filed in the United States District Court ¹¹ The annexed affidavit was sworn to by Merle I. Zweifel in Oklahoma on August 5 (the day after argument upon the motion for default judgment) but never filed with or delivered to the district court until the filing of the motion on November 6. In this affidavit defendant for the first time attempts to excuse his failure to respond to the...