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on that day defendant wrongfully and forci- termined that he has the right to purchase wly entered upon said property without his the land and receive the title from the gov. consent or permission; and rendered judg- ernment, is to “bring chaos instead of social ment for possession and damages. From order; to make the court a useless formalithis judgment the defendant prosecutes this ty, and the law an object of contempt." appeal.

With this view, it becomes unnecessary, to

consider whether, under the circumstances F. J. Mott, for appellant. H. N. Haynes,

alleged in his answer, the defendant initifor appellee.

ated a valid homestead right by his filing in

the land office, since, if valid, it would not, GODDARD, J. (after stating the facts).

under the circumstances, justify forcible enThe appellee contends that the district court

try upon the possession of plaintiff. It fol. was without jurisdiction to entertain tbis ac- lows that the judgment of the court below tion, because the claims of the respective must be affirmed. Affirmed. parties to the land in question were pending on a contest in the land office. It will be

(20 Colo. 448) conceded that the courts are without juris

SNIDER V. RINEHART et al.1 diction to determine the right of contending parties to purchase public land while a con

(Supreme Court of Colorado. Jan. 7, 1895.) JUDGMENT IN EJECTMENT –

- VACATING

- FAILURE troversy is being waged before the proper

TO DEMAND NEW TRIAL NEWLY-DISCOVERED officers of the interior department to settle EVIDENCE-PRACTICE-CUSTOM-EQUITABLE REsuch right, and will refuse to aid either LIEF-PROOF. party, by way of affirmative relief. until 1. A judgment in ejectment will not be such controversy is finally determined by

set aside in equity, on the ground of newly-dis

covered evidence, where such evidence was that department. But their jurisdiction to

known to the defeated party before the time prevent the wrongful invasion of the posses- had expired within which he was entitled to de. sion of one in the actual occupancy of the

mand a new trial under the statute. Goddard, public domain, so long as the title remains

J., dissenting.

2. It is no excuse for failure to demand a in the government, is not only expressly con- new trial in ejectment that the defeated party ferred by our statute, but is essential to thought that, by paying the costs of the first the maintenance of the peace and order of

trial, he was entitled to a new trial without makthe community.

ing any demand therefor, though it was genIn the exercise of this

erally understood among lawyers that the payjurisdiction, the courts do not attempt to ment of costs entitled a party to a new trial, pass upon the merits of the respective claims

and such practice was quite generally adopted

by the courts. of the contending parties, and decide which

3. Where a lost corner of a section has been has successfully initiated and established his

established in ejectment, the judgment will right to ultimately receive the legal title to not be set aside, in equity, on the ground of the land, but only protect the actual posses

newly-discovered evidence, where the object of

the new evidence is to establish the section sion, and prevent the wrongful and forcible

corner by a monument at a place other than interference therewith, until the government that called for by the field notes, the effect of parts with its title. Eliminating from the

which would be to set aside lines established in

the former trial, and substitute therefor lines pleadings all averments relating to the

run in direct violation of United States statclaims upon which the plaintiff and defend- utes. Goddard, J., dissenting. ant found their right to purchase the land

Appeal from district court, El Paso county. from the government, as pre-emption or

Action by George W. Snider against homestead claimants, there remains the

Charles Rinehart and Emma R. Austin. statement of a cause of action which the

From a judgment for defendants, plaintiff court below clearly had the jurisdiction to

appeals. Affirmed. hear and determine. It is averred that plain

George W. Snider, appellant, instituted this tiff and his grantors had been in the actual

suit in the district court of El Paso county and undisturbed possession of the land in

on January 5, 1893, against Charles Rinehart question for three years prior to the 15th

and Emma R. Austin, as the heirs of Rose day of August, 1889, and bad inclosed the Rinehart, deceased, to enjoin the enforcesame with a good and substantial fence, and

ment of a judgment at law theretofore and raised crops thereon, during this time; that

on the 12th day of April, 1888, rendered on the 15th day of August, 1889, and while against appellant in favor of said Rose. The plaintiff was so in the sole, exclusive, peace complaint is very voluminous, and, among ful possession, defendant wrongfully and

other things, sets forth the history of the forcibly cut the fence, and entered upon action at law in which the judgment was the land, without his consent or permission,

rendered, and is, in brief, as follows: The and by virtue of said wrongful entry re

complaint filed in that action on or about the mains in possession of the major part of the

1st day of October, 1886, contained two premises. The court below found that the

causes of action. The first, and the only one testimony sustained these allegations. To

necessary to be noticed upon this review, hold that the party whose possession is thus averred that she (Rose Rinehart) was the invaded is remediless pending a protracted

owner in fee and possessed of an undivided controversy before the officers of the land department, and until they shall have de 1 Rehearing denied, March 4, 1895.

one-half of the S. W. 14 of section 32, town- cover its whereabouts in time to produce evship 13 S., of range 67 W., as tenant in com- idence of its location at the former trial; mon with the appellant, Snider, who was that by means of such corner the true boundthe owner of the other half; that he had ary between sections 31 and 32, as estabousted her from, and unlawfully withheld lished and subdivided by the United States the possession of, that part of the premises government survey, could be readily deterknown as the “Manitou Grand Caverns." mined; and that such boundary line shows The appellant, Snider, admitted plaintiff's each and every part of the caverns in questitle to an undivided one-half of the S. W. tion to be entirely and wholly within the 14 of section 32, township 13 S., of range 67 boundaries of section 31. While the comW., but denied that the Grand Caverns were plaint contains allegations of fraudulent consituate thereon, and alleged that they were duct on the part of Rose Rinehart and her situate in the N. E. 14 of the S. E. 14 of sec- representatives, in removing interior corners, tion 31, township 13 S., of range 67 W., of no evidence was introduced to sustain such which he was the sole and absolute owner in allegations. The appellees, by their answer, fee. On the 30th day of November, 1887, deny the material averments of plaintiff's the case was tried to a jury, and the sole complaint, the validity of this corner, and the issue submitted was whether the Grand Cay- manner of its discovery, and the exercise of erns were located on section 31 or 32, and such diligence on the part of plaintiff as will the jury found that they were upon section entitle him to the relief sought. Upon the 31. The costs were paid, and a new trial trial of the cause a large number of witwas taken under the statute. On the 12th nesses testified, and upon the testimony inday of April, 1888, the case was tried again troduced the court below made the following to a jury, upon the same issue, and they findings: "(1) That what is termed in the evfound that the Grand Caverns were situate idence the 'Snider Monument is the true gov. upon and within the limits of section 32; ernment corner, as established by the origwhereupon judgment was rendered in favor inal government survey, and is in the place of plaintiff in that action, that she have and where it was originally located. This fact is recover an undivided one-half of the cave in established by a clear preponderance of the question, and that writ of possession issue testimony, although I cannot say it has been placing her in possession. The defendant, established beyond all doubt. (2) That the Snider, paid the costs, and the case was by plaintiff used reasonable diligence to discovthe clerk reinstated on the docket, and re- er the said monument, and failed to do so, mained thereon from term to term, until at a before the trial at law between plaintiff (then special and adjourned term on June 10, 1889, defendant) and Rose Rinehart (plaintiff) on when a motion to vacate the judgment was April 12, 1888. (3) That under the practice denied, the case stricken from the docket, of Colorado it was generally understood, durand a writ of possession ordered to issue to ing the years 1888 and 1889, that in an ejectput plaintiff in possession. From this judg- ment action, after the first unfavorable verment the defendant prayed an appeal to the dict, the unsuccessful party could obtain a supreme court, which was granted; and new trial by simply paying the costs before thereafter, and at the September term, 1892, the next succeeding term of the court, and the judgment of the court below was af- that this practice was quite generally adoptfirmed. Snider v. Rinehart, 18 Colo. 18, 31 ed by the courts and by the bar of the state. Pac. 716. Upon the last trial of the cause, (4) By adopting the Snider monument as the monument or stone marking the north the true corner for sections 29, 30, 31, and 32, corner of sections 31 and 32 not having been and from that corner drawing the line befound, it was assumed to be a lost corner, tween sections 31 and 32 to the township line and, there being a shortage or deficiency on on the south, it is found that the caverns in the north line of the two sections, the short- controversy in this suit will be in section 31. age was apportioned, and the corner estab- It may be proper to add that there is no lished, and by such apportionment the cav- proof whatever to show any fraudulent act erns in question were shown to be in section by any party in the action at law, nor is there 32, and the jury so found. But shortly after any showing that the trial was not fair and this trial, and some time during the month of impartial. I am constrained to deny to the June, 1888, plaintiff alleges that he by acci- plaintiff the relief he seeks in this action, for dent discovered the stone marking such cor- the reason, briefly stated, that I do not think ner, in position, where it was placed by the the facts meet the requirements demanded government surveyor at the time of making by equity, when it is sought to overthrow a the original survey, in 1871; and avers that judgment that is impeached for fraud.” the country around and about said section

Thomas, Hartzell, Bryant & Lee and M. F. corner is wild, broken, and mountainous, and

Taylor, for appellant. Biddell, Starkweathvery precipitous, the surface of the ground

er & Dixon, amici curiae. Wells, McNeal & being covered with or made up of broken fragments of stone and rock slag, and that

Taylor, for appellees. all efforts theretofore made to find the corner were unavailing; and that he had, by the HAYT, C. J. (after stating the facts). This exercise of diligence, been unable to dis- is a suit in equity to set aside a judgment at law. The properties involved are the ernment corner on the north between secGrand Caverns, situate near Manitou, EI tions 31 and 32, this being one of the quesPaso county, Colo. The suit at law was tions at issue between the parties in the commenced on the 1st day of October, 1886. two trials at law. In that action the principal, if not the sole, The evidence taken in the present proceedquestion involved was whether the Grand ing shows that the corner claimed as a gov. Caverns are in section 31 or section 32 of ernment corner is marked by a stone in township 13 S., of range 67 W. Two trials size about 9 inches by 11 inches by 16 inches, were had in the original suit,-the first in weighing about 100 pounds, protruding from November, 1887, resulting in a verdict and the ground about 9 inches, and marked by a judgment to the effect that the Grand Cav- monument of smaller stones, located near a erns were in section 31; the second trial pinon tree, the tree being marked by har. occurred in the following month of April, ing the limbs cut off from one side, as is and resulted in a verdict and judgment usual with surveyors in running a line awarding the Grand Caverns to section 32. Charles E. Liebold, a witness for the plainAfter the second trial the defendants paid tiff, testified that he resided at East Manithe costs, but made no effort, by motion or tou, and had lived there 14 years. That he otherwise, to obtain a new trial until more had taken up a piece of land near the head than one year had elapsed, viz. at the June of Williams' cañon, and that to inclose this term, 1889, at which time a motion to vacate land he had built a fence across the cañon the judgment was denied, and the case at the time. It was on the line between stricken from the docket. From this judg- me and Snider,-

-on my south line. I had a ment an appeal was taken to this court, and survey before the fence was built. I don't the judgment affirmed at the September remember exactly when it was built, but I term, 1892. 31 Pac. 716. The present ac- think between 1884 and 1885. Have been tion was not commenced until after the lat- on the ground recently. Was there last ter judgment was rendered. The contro- winter and yesterday.” In answer to furversy for the possession of these caverns ther interrogatories, the witness testified had been pending in the courts for six years with reference to the existence of the corbefore the present action was commenced. ner in controversy: “There was a monu. Since the institution of the first suit two of ment there,-a pile of rock; what was shown the defendants have died.

to me as the corner, and what I supposed I think it is apparent, from the foregoing was the corner between me and Snider. statement, that the judgment at law should

I was on the ground yesterday to renot be opened in this proceeding, except fresh my memory, and I found a large stone for the most cogent reasons. Relief was de- there. The earth was dug up around it, nied in the district court for the reason that and it was pretty close to what I have al. the judgment at law was sought to be im- ways supposed was that corner. It looked peached for fraud, and the court found that as though it had been tampered with or there was no proof whatever of such fraud, moved recently." On cross-examination, the nor any showing that the trial at law was witness further testified: "The fence in that not fair and impartial. It is not now con- cañon is very nearly on a line. I tried to tended that there was any fraud practiced get it as nearly on a line as I could. I do in either of.the trials at law, the effort here not remember when the survey was made, to open the judgment being based entirely but I think between 1881 and 1884, and I upon newly-discovered evidence that could always understood this was my southeast not, as it is claimed, have been made avail- corner. * * I can go right to it. * able in the previous trials at law. But the By further testimony the witness shows that fact that the district judge conceived that the southeast corner, identified by him as a the sole matter involved was a question of common corner with Snider, is the corner fraud in fact in the trial at law should not claimed by plaintiff to have been recently be a matter of surprise, in view of the plead- | discovered, and to establish which a new ing; it being charged in the complaint, on trial is asked; although this witness, further information and belief, that the Rineharts testifying, says “that he and (appellant) had fraudulently procured the removal of Charles Snider had talked together a vout the government corners for the purpose of the corner frequently in 1884 and 1885, and making it impossible to ascertain the bound- that he could go right to it.” E. H. Kel. ary line between sections 31 and 32. As logs, another witness introduced by the the record before us is entirely free from plaintiff, testified that he was a civil engi. evidence showing, or tending to show, fraud neer and surveyor, and had been a resident in fact, we may dismiss this allegation of the of the state since 1868; that he was the complaint without further notice. Is the government surveyor under whose direction plaintiff, Snider, entitled to have the judg. the original survey of the township contain. ment at law set aside and a new trial ing the Grand Caverns was made. The awarded in the action at law by reason of witness further testified that the survey was newly-discovered evidence? The new eri- made in 1871; that the plat and field notes dence upon which plaintiff predicates this were filed in the surveyor general's office. suit relates solely to the location of the gov- The witness also testified that with these notes he located the corner in 1893, alunough tain a new trial in equity on the ground of the tree had been cut down, but not re- newly-discovered evidence, the complainant moved, and the pile of stones had been scat- must show that the evidence was not discov. tered about. This witness was not sub- ered in time to be used in the legal proceedpoenaed at either of the previous trials, and ing. If discovered in time to have been predid not then testify. F. E. Baxter, another sented upon a motion for a new trial in the witness for the plaintiff, testified that he legal action, relief will be denied in equity. saw this corner shortly after it was claimed 1 High, Inj. $ 116; Ferrell v. Allen, 5 W. Va. to have been rediscovered, and that he saw 43; 3 Pom. Eq. Jur. § 1365; Long v. Smith, near one of the corners a pole lying on the 39 Tex. 161. It is said that a motion for a ground, which he though might have been new trial in an action at law and a bill for used as a site pole for a survey; that the relief in equity are concurrent remedies, and pole bore evidence of having been there for in support of this proposition our attention is a number of years; that, if he had seen directed to the following cases: Wright v. this pole without knowing the location of Hake, 38 Mich. 525; Metcalf v. Williams, the corner, the pole would have suggested a 104 U. S. 93; Belmont v. Railway Co., 52 close search in the immediate vicinity for Barb. 637; Young v. Sigler, 48 Fed. 182. In the corner.

the first case cited it was urged that comThe only evidence tending to show diligence plainants lost their remedy in equity by movin searching for the corner, on the part of the ing for a third trial in the law action, and plaintiff, is negative in character, and to the the court said: “There is nothing to this. It effect that others had repeatedly searched was very proper for them to get rid of the without success. Common prudence should judgment in that court if they could, on any have suggested to the plaintiff, at least after ground that was open to them." The court one trial had been had, that inquiry should might have very properly added that it was have been made of Kellogg, who had charge necessary to do so to give them a standing in of the official survey, and of Liebold, the equity. The case of Metcalf v. Williams, suowner of an adjoining quarter section, and pra, does not support appellant's contention, the former should have been engaged to re as it is shown by the opinion that the comrun the lines, if necessary to locate the cor- plainant had appeared in the case at law, and ner. Holmes v. Stateler, 57 III. 209. In the entered his plea of nil debet, but that judg. absence of such showing, if the trial court ment was afterwards entered without his had dismissed the bill for want of diligence knowledge or that of his counsel, as though on the part of plaintiff in his efforts to ascer- no plea had been filed. Being taken by surtain this corner, the judgment would not be prise, counsel moved the court to reinstate disturbed; but that court having expressly the cause upon the docket, but the judge found that the plaintiff did use due diligence, doubting his authority to do so refused the and there being evidence to support this find- motion. The complainant had done everying, perhaps it should not be disturbed in this thing within his power to obtain relief in the court. The finding, however, with reference law action, and the supreme court of the to diligence is expressly limited to what was United States, sustaining a bill in equity to done before the trial at law on April 12, 1888, set aside the judgment, said: “Had not the and we may therefore consider, without em- term passed by, the district judge would unbarrassment by any findings made by the tri- doubtedly have set aside the judgment, and al judge, what transpired after the last trial, reinstated the cause on the docket for trial. and at a time when a remedy was yet avail. | If, as he supposed, the passage of the term able in the action at law.

deprived him of power to do this, it became Plaintiff and other witnesses testify that a proper case for equitable interference by he found the original government corner in bill.” The court in the course of its opinion controversy, the same being the corner on the takes occasion to say that the firmly-settled north between sections 31 and 32, in the practice under which courts of law entertain month of June succeeding the trial at law motions for a new trial, coupled with the disat the April term. In an action of eject- like of one court unnecessarily to interferu ment, the statute provides that the unsuccess- with proceedings in another, has caused the

ful party may have a new trial upon applica- almost total disuse of that jurisdiction. In . tion therefor, upon the payment of costs at the case of Belmont v. Railway Co., supra, it is

any time before the next term of court. The held that whatever can be done by motion to next succeeding term began in the month of the court might, upon further motion by either November, 1888. It will thus be seen that party, be altered, modified, or wholly undone. the defendant, the complainant here, had sev- There is nothing in the case that has any eral months in which he might have obtained bearing upon the question we are considera new trial in the action at law by simply | ing. The case of Young v. Sigler, supra, was presenting a request therefor, as he did in a proceeding in equity to set aside a judgfact pay the costs. Notwithstanding this ment at law. The cause was heard upon deremedy was open to him, he made no appli- murrer to the bill. In the bill it is alleged that cation for relief in the action at law before the judgment was obtained by the fraud of the next term of court, or for a long time plaintiffs, and that, although moving to that thereafter. This delay was fatal. To ob- | end, defendants were unable to obtain a new trial, and are without remedy, according to after the rendition of judgment before inthe rules and practice of the court at law in stituting this proceeding. In this connecwhich the judgment was rendered. The case tion the language of this court upon the was commenced in the year 1886, and a trial former appeal in this case is strongly in had in October of that year. It is further al- | point, viz.: “It is also a general principle leged that the complainant did not obtain that a defeated party, desiring a new trial, knowledge of the fraud practiced upon him must be diligent in making application for until in November, 1890. I think it is appar- it. Negligence or undue delay may defeat ent from the opinion which was rendered by an application otherwise meritorious. It is Shiras, J., at nisi prius, that the fraud of the policy of the law to secure to parties which complainant complained did not come litigant the termination of their legal conto his knowledge in time to be made availa- troversies.” Snider v. Rinehart, 18 Colo. 18, ble by motion for a new trial in the original 31 Pac. 716. In Hunt v. Boyier, 1 J. J. action. I find nothing in these cases neces- Marsh. 484, it is said: "Vigilantibus non sarily at variance with the firmly established dormientibus, servat lex,' applies more emdoctrine that equity will not interfere with phatically to motions or bills for new trials judgments at law, wherean adequate remedy than to any other class of cases." See, also, is provided in the law action, which has been Faulkner's Adm'x v. Harwood, 6 Rand. (Va.) lost to the aggrieved party as the result of 125; Embry v. Palmer, 107 U. S. 3, 2 Sup. his own negligence. If there is an exception Ct. 25; Pico v. Cóhn, 91 Cal. 129, 25 Pac. to this general rule, such exception is contined 970, and 27 Pac. 537; U. S. v. Throckmorto cases where the judgment is taken by ton, 98 U. S. 61; Brown v. County of Buena fraud. Mr. Pomeroy, in his work on Equity Vista, 95 U. S. 157. Jurisprudence (volume 3, p. 402, note 2), says: There is another and conclusive reason for "The modern cases, where such judgments denying relief in the present action. The at law have been enjoined, will be found, on relief sought is inequitable. It is a fundaexamination, to have arisen under the more mental principle of equitable jurisprudence general power, which equity clearly posses- that the party seeking relief must not only ses, of setting aside the most solemn proceed- come into court with clean hands, but with ings when tainted by fraud. The equitable a just, equitable, and conscientious claim. jurisdiction to entertain bills for a new trial, In the terse language of Mr. Justice Swayne if it exist at all, must be confined to a very in the case of Sullivan v. Railroad Co., 94 few states.” As the plaintiff in this case, at U. S. 806, in speaking of the equity juristhe time of the discovery, had a remedy in prudence of the court, “nothing can call the legal action, which he negligently failed forth this court into activity but conscience, to take advantage of, I am of the opinion good faith, and reasonable diligence." See, that equity cannot grant relief.

also, High, Inj. $ 114. It is established beIt is argued, however, that plaintiff was yond doubt that the newly-discovered corner prevented from taking advantage of his is not where the law requires it to have been remedy in the law action by reason of a mis- placed, but several hundred feet away from understanding of the statute relating there- such point; and admitting, for the purposes to; and the trial judge finds that, under the of this case, that this corner, if authentipractice of Colorado, it was generally under- cated, would have controlled in the law acstood, during the years 1888 and 1889, that tion, it does not necessarily follow that the in an ejectment action, after the first un- judgment will for this reason be set aside in favorable verdict, the unsuccessful party equity, but it must be further shown that could obtain a new trial by simply paying the judgment sought to be enjoined is in. the costs before the succeeding term of the equitable. 2 Story, Eq. Jur. (12th Ed.) $ court, and that this practice was quite gen- 896; 1 High, Inj. $ 114; Holmes v. Stateler, erally adopted by the courts and by the bar supra. It is upon this principle that it has of the state. Perhaps we should accept this been held that although a party may have a finding as conclusive upon this review of cause of action at law for the breach of a the general understanding of the practice, contract, while the provisions of the conalthough in all the years that the judges of tract itself may be so inequitable that if a this court bave presided at nisi prius, and court of equity be appealed to it would deny upon appellate tribunals, not one had ever a decree for its enforcement, there are other heard of such a practice prior to this case. defenses, such as the statute of limitations, But, assuming that such was the practice, the statute of usury, and the like, which are it is not sanctioned by the statute, but is in allowed and favored in law, but would be no direct violation thereof. The mistake in ground upon which to invoke the jurisdiction this matter was one of law, from which of equity for the purpose of obtaining a new the plaintiff cannot obtain relief in equity. trial in order to give the party an opportunity Judgments at law would be entitled to to plead such statutes, although he might, as slight consideration if they were subject to the result of excusable neglect, have been be set aside in equity for the reason here prevented from interposing the same in the invoked. Not only did plaintiff fail to move law action. The United States statutes refor a new trial in the law action, but he lating to the survey of the public lands prowaited until nearly four years had elapsed vide, in section 2395, that such "lauds shall

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