Snider v. Rinehart

20 Colo. 448

• Court: Supreme Court of Colorado
• Decided: September 15, 1894
• Status: Published

Opinions

Chief Justice Hayt

delivered the opinion of the court.

This is a suit in equity to set aside a judgment at law. The properties involved are the Grand Caverns, situate near. Manitou, El Paso county, Colorado. The suit at law was commenced on the first day of October, 1886. In that action the principal, if not the sole, question involved was whether the Grand Caverns are in section 31 or section 32 of township 13 south, of range 67 west.

Two trials were had in the original suit, — the first in November, 1887, resulting in a verdict and judgment to the effect that the Grand Caverns were in section 31; the second trial occurred in the following month of April, and resulted in a verdict and judgment awarding the Grand Caverns to section 32.

After the second trial the defendants paid the costs, but made no effort, by motion or otherwise, to obtain a new trial until more than one year had elapsed, viz., at the June term, 1889, at which time a motion to vacate the judgment was denied and the case stricken from the docket. Prom this judgment an appeal was taken to this court, and the judgment affirmed at the September term, 1892. The present action was not commenced until after the latter judgment was rendered. The controversy for the possession of these caverns had been pending in the courts for six years before the present action was commenced. Since the institution of the first suit two of the defendants have died.

I think it is apparent from the foregoing statement that the judgment at law should not be opened in this proceeding, except for the most cogent reasons. Relief was denied in the district court for the reason that the judgment at law was sought to be impeached for fraud, and the court found that there was no proof whatever of such fraud, nor any showing that the trial at law was not fair and impartial.

It is not now contended that there was any fraud practiced in either of the trials at law, the effort here to open the judgment being based entirely upon newly discovered evidence that could not, as it is claimed, have been made available in the previous trials at law. But the fact that the district judge conceived that the sole matter involved was a question of fraud in fact in the trial at law should not be a matter of surprise in view of the pleading, it being charged in the complaint, on information and belief, that the Rineharts had fraudulently procured the removal of the government corners for the purpose of making it impossible to ' ascertain the boundary line between sections 31 and 32.

As the record before us is entirely free from evidence showing or tending to show fraud in fact, we may dismiss this allegation of the complaint without further notice.

Is the plaintiff Snider entitled to have the judgment at law set aside and a new trial awarded in the action at law by reason of newly discovered evidence? The new evidence upon which plaintiff predicates this suit relates solely to the location of the government corner on the north between sections 31 and 32, this being one of the questions at issue between the parties in the two trials at law.

The evidence taken in the present proceeding shows that the corner claimed as a government corner is marked by a stone in size about 9 inches by 11 inches by 16 inches, weighing about one hundred pounds, protruding from the ground about nine inches, and marked by a monument of smaller stones, located near a pinon tree, the tree being marked by having the limbs cut off from one side, as is usual with surveyors in running a line.

Charles E. Liebold, a witness for the plaintiff, testified that he resided at East Manitou and had lived there fourteen years ; that he had taken up a piece of land near the head of Williams’ Canon, and that to inclose this land he had built a fence across the canon at the time. “It was on the line between me and Snider,' — -on my south line. I had a survey before the fence was built. I don’t remember exactly when it was built, but I think between 1884 and 1885. Have been on the ground recently; was there last winter and yesterday.” In answer to further interrogatories the witness testified, with reference to the existence of the corner in controversy : “ There was a monument there, a pile of rock, what was shown to me as the corner, and what I supposed was the corner between me and Snider. * * * I was on the ground yesterday to refresh my memory, and I found a large stone there. The earth was dug up around it, and it was pretty close to what I have always supposed was that corner. It looked as though it had been tampered with or moved recently.”

On cross-examination, the witness further testified: “ The fence in that canon is very nearly on a line; I tried to get it as nearly on a line as I could. I do not remember when the survey was made, but I think between 1881 and 1884, and I always understood this was my southeast corner. * * * I can go right to it.” * * * By further testimony the witness shows that the southeast corner, identified by him as a common corner with Snider, is the corner claimed by plaintiff to have been recently discovered, and to establish which a new trial is asked, although this witness, further testifying, says “ that he and (appellant) Charles Snider had talked together about the corner frequently in 1881¡, and 1885, and that he could go right to it.”

E. H. Kellogg, another witness introduced by the plaintiff, testified that he was a civil engineer and surveyor, and had b'een a resident of the state since 1868; that he was the government surveyor under whose direction the original survey of the township containing the Grand Caverns was made. The witness further testified that the survey was made in 1871; that the plat and field notes were filed in the surveyor general’s office. The witness also testified that with these notes he located the corner in 1893, although the tree had been cut down, but not removed, and the pile of stones had been scattered about. This witness was not subpoenaed at either of the previous trials and did not then testify.

F. E. Baxter, another witness for the plaintiff, testified that he saw this corner shortly after it was claimed to have been rediscovered and that he saw near one of the corners a pole lying on the ground, which he thought might have been used as a site pole for a survey; that the pole bore evidence of having been there for a number of years; that if he had seen this pole, without knowing the location of the corner, the pole would have suggested a close search in the immediate vicinity for the corner.

The only evidence tending to show diligence in searching for the corner, on the part of the plaintiff, is negative in character, and to the effect that others had repeatedly searched without success. Common prudence should have suggested to the plaintiff, at least after one trial had been had, that inquiry should have been made of Kellogg, who had charge of the official survey, and of Liebold, the owner of an adjoining quarter section, and the former should have been engaged to rerun the lines, if necessary to locate the corner. Holmes v. Stateler et al., 57. Ill. 209.

In the absence of such showing, if the trial court had dismissed the bill for want of diligence on the part of plaintiff •in his efforts to ascertain this corner, the judgment would not be disturbed; but that court having expressly found that the. plaintiff did use due diligence, and there being evidence to support this finding, perhaps it should not be disturbed in this court.

The finding, however, with reference to diligence is expressly limited to what was done before the trial at law on April 12, 1888, and we may therefore consider, without embarrassment by any findings made by the trial judge, what transpired after the last trial and at a time when a remedy was yet available in the action at law.

• Plaintiff and other witnesses testified that he found the original government corner in controversy, the same being the corner on the north between sections 31 and 32, in the month of June succeeding the trial at law at the April term. In an action of ejectment the statute provides that the unsuccessful party may have a new trial upon application therefor, upon the payment of costs at any time before the next term of court. The next succeeding term began in the' month of November, 1888. It will thus be seen that the defendant, the complainant here, had several months in which he might have obtained a new trial in the action at law by simply presenting a request therefor, as he did in fact pay the costs. Notwithstanding this remedy was open to him, he made no application for relief in the action at law before the next term of court, or for a long time thereafter. This delay was fatal. To obtain a new trial in equity on the ground of newly discovered evidence, the complainant must show that the evidence was not discovered in time to be used in the legal proceeding. If discovered in time to have been presented upon a motion for a new trial in the legal action, relief will be denied in equity. 3 Pomeroy’s Eq. Jur., sec. 1365; 1 High on Inj., sec. 116; Ferrell v. Allen, 5 W. Va. 43; Long v. Smith, 39 Tex. 161.

It is said that a motion for a new trial in an action at law and a bill for relief in equity are concurrent remedies, and in support of this proposition our attention is directed to* the following cases: Wright v. Hake, 38 Mich. 525; Metcalf v. Williams, 104 U. S. 93; Belmont v. The Erie Railway Co. et al., 52 Barbour, 637; Young v. Sigler, 48 Fed. Rep. 182.

In the first case cited it was urged that complainants lost their remedy in equity by moving for a third trial in the law action, and the court said: “ There is nothing to this. It was very proper for them to get rid of the judgment in that court if they could, on any ground that was open to them.” The court might have very properly added that it was necessary to do so to give them a standing in equity.

The case of Metcalf v. Williams, supra, does not support appellant’s contention, as it is shown by the opinion that the complainant had appeared in the case at law and entered his plea of nil debet, but that judgment was afterwards entered without his knowledge or that of his counsel, as though no plea had been filed. Being taken by surprise, counsel moved the court to reinstate the cause upon the docket, but the judge doubting his authority to do so refused the motion. The complainant had done everything within his power to obtain relief in the law action, and the supreme court of the United States, sustaining a bill in equity to set aside the judgment, said: “Had not the term passed by, the district judge would undoubtedly have set aside the judgment, and reinstated the cause on the docket for trial. If, as he supposed, the passage of the term deprived him of power to do this, it became a proper case for equitable interference by bill.” The court in the course of its opinion takes occasion to say that the firmly settled practice under which courts of law entertain motions for a new trial, coupled with the dislike of one court unnecessarily to interfere with proceedings in another, has caused the almost total disuse of that jurisdiction.

In the case of Belmont v. The Erie Railway Company et al., supra, it is held that whatever can be done by motion to the court might, upon further motion by either party, be altered, modified or wholly undone. There is nothing in the case that has any hearing upon the question we are considering.

The case of Young v. Sigler, supra, was a proceeding in equity to set aside a judgment at law. The cause was heard upon demurrer to the bill. In the bill it is alleged that the judgment was obtained by the fraud of plaintiffs, and that, although moving to that end, defendants were unable to obtain a new trial and are without remedy, according to the rules and practice of the court at law in which the judgment was rendered. The case was commenced in the year 1886, and a trial had in October of that year. It is further alleged, that the complainant did not obtain knowledge of the fraud practiced upon him until in November, 1890. I think it is apparent from the opinion which was rendered by Shiras, J., at nisi prius, that the fraud of which complainant complained did not come to his knowledge in time to be made available by motion for a new trial in the original action.

I find nothing in these cases necessarily at variance with the firmly established doctrine that equity will not interfere with judgments at law where an adequate remedy is provided in the law action, which has been lost to the aggrieved party as the result of his own negligence. If there is an exception to this general rule, such exception is confined to cases where the judgment is taken by fraud.

Mr. Pomeroy, in his work on Equity Jurisprudence, vol. 3, note 2, p. 402, says :

“ The modern cases, where such judgments at law have been enjoined, will be found on examination to have arisen under the more general power, which equity clearly possesses, of setting aside the most solemn proceedings when tainted by fraud. The equitable jurisdiction to entertain bills for a new trial, if it exist at all, must be confined to a very few states.”

As the plaintiff in this case, at the time of the discovery, had a remedy in the legal action, which he negligently failed to take advantage of, I am of the opinion that equity cannot grant relief. It is argued, however, that plaintiff was prevented from taking advantage of his remedy in the law action by reason of a misunderstanding of the statute relating thereto, and the trial judge finds that under the practice of Colorado it was generally understood, during the years 1888 and 1889, that in an ejectment action, after the first unfavorable verdict, the unsuccessful party could obtain a new trial by simply paying the costs before the succeeding term of the court, and that this practice was quite generally adopted by the courts and by the bar of the state. Perhaps we should accept this finding as conclusive upon this review of the general understanding of the practice, although in all the years that the judges of this court have presided at nisi prius, and upon appellate tribunals, not one had ever heard of such a practice prior to this case. But, assuming that such was the practice, it is not sanctioned by the statute, but is in direct violation thereof. The mistake in this matter was one of law, from vdfich the plaintiff cannot obtain relief in equity. Judgments at law would be entitled to slight consideration if they were subject to be set aside in equity for the reason here invoked.

Not only did plaintiff fail to move for a new trial in the law action, but he waited until nearly four years had elapsed after the rendition of judgment before instituting this proceeding. In this connection the language of this court upon the former appeal in this case is strongly in point, viz.:

“ It is also a general principle that a defeated party desiring a new trial must be diligent in making application for it. Negligence or undue delay may defeat an application otherwise meritorious. It is the policy of the law to secure to parties litigant the termination of their legal controversies.” Snider v. Rinehart, 18 Colo. 18.

In Hunt v. Boyier, 1 Marshall, p. 484, it is said:

“ ‘ Vigilantibus non dormientibus, servat lex,’ applies more emphatically to motions or bills for new trials than to any other class of cases.” See, also, Faulkner’s Adm. v. Harwood, 6 Rand. 125; Embry v. Palmer, 107 U. S. 3; Pico v. Cohn et al., 91 Cal. 129; United States v. Throckmorton, 98 U. S. 61; Brown v. County of Buena Vista, 95 U. S. 157.

There is another and conclusive reason for denying relief in the present action. The relief sought is inequitable. It is a fundamental principle of equitable jurisprudence that the party seeking relief must not only come into court with clean hands, but with a just, equitable and conscientious claim. In. the terse language of Mr. Justice Swayne, in the case of Sullivan v. The Railroad, 94 U. S. 806, in speaking of the equity jurisprudence of the court, — “ Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence.” See, also, High on Inj., sec. 114.

It is established beyond doubt that the newly discovered corner is not where the law requires it to have been placed, but several hundred feet away from such point, and admitting, for the purposes of this case, that this corner, if authenticated, would,have controlled in the law action, it does not necessarily follow that the judgment will for this reason be set aside in equity, but it must be further shown that the judgment sought to be enjoined is inequitable. 2 Story’s Eq. Jur. (12th Ed.) sec. 896; 1 High on Inj., sec. 114; Holmes v. Stateler, supra.

It is upon this principle that it has been held that although a party may have a cause of action at law for the breach of a contract, while the provisions of the contract itself may be. so inequitable that if a court of equity be appealed to it would deny a decree for its enforcement. There are other defenses, such as the statute of limitations, the statute of usury, and the like, which are allowed and favored in law, but would be no ground upon which to invoke the jurisdiction of equity for the purpose of obtaining a new trial in order to give the party an opportunity to plead such statutes, although he might, as the result' of excusable neglect, have been prevented from interposing the same in the law action.

" The United States statutes relating to the survey of the public lands provide, in section 2395, that such “ lands shall be divided by north and south lines run according to the true meridian, and by others crossing them at right angles, so as to form townships of six miles square. * * *

“ The township shall be subdivided into sections, containing, as nearly as may be, six hundred and forty acres each, by running through the same, each way, parallel lines at the end of every two miles; and by marking a corner of each of such lines, at the end of every mile. The sections shall be numbered respectively, beginning with the number one in the northeast section and proceeding west and east alternately through the township with progressive numbers till the thirty-six be completed. * * *

“ Where the exterior lines of the townships which may be subdivided into sections or half sections exceed, or do not extend six miles, the excess or deficiency shall be specially noted, and added to or deducted from the western and northern ranges of sections or half sections in such township, according as the error may be in running the lines from east to west, or from north to south.”

It is conceded that section 31 is in the southwest corner of township number 13, and in the west tier of sections, and that the shortage should, under the statute, fall in section 31, while the attempt in this case is to deduct the shortage entirely from section 32, and none from section 31; and to accomplish this a new trial is asked for the purpose of establishing the controverted corner at a place other than that called for by the original field notes on file in the surveyor general’s office, and to set aside the lines as established in the trial at law, and substitute therefor other lines that had been run in direct violation of the United States statutes.

In support of this proposition a number of cases have been cited in which it has been held that the monuments placed upon the ground must control, but in none of these cases has the discrepancy between the monuments and the lines as they should have been surveyed under the statute been more than a few feet, and it may well be doubted whether the rule giving preference to monuments should be extended to a case like the present, even in an action at law; but, however that may be, after the lines have been once established, as in this case, after a protracted litigation at law, a court of equity should not set aside a judgment fairly obtained, in order to maintain a survey that is illegal, if not fraudulent.

Where a trial has been had and a judgment rendered at. law, the judgment should not be set aside and a new trial awarded in equity, unless by so doing the ends of justice will be subserved. Such a case, in my judgment, is not disclosed by this record. Here we are asked to set aside a judgment upon a finding that the newly discovered corner is established by a preponderance of the evidence only, in a suit instituted years after the judgment was rendered and the new evidence discovered. The controversy has already been before the courts for upwards of eight years. Two of the original plaintiffs have died since its commencement. Should a new trial be awarded, counsel will not only be deprived of their advice and assistance in conducting the litigation, but their lips are also sealed. It is true that the testimony of these parties, as taken upon a former trial, is preserved in the record, but I apprehend that this testimony would be of but little avail upon a new trial upon the question of the authenticity of the alleged newly discovered corner, as their testimony upon the former trial was not directed to this point.

For the reasons given, the judgment should be affirmed.