OPINION OP THE COURT.
M’FIE, J.
— A large number of errors are assigned but they may fairly be grouped into four, namely:
1st. The court erred in permitting the supplemental complaint to be filed.
2nd. The court erred in rendering decree upon default of appearance and answer within the time allowed by law.
3rd. The court erred in its order modifying original decree nunc pro tunc.
4th. The court erred in over-ruling motion to vacate said order and decrees and to reopen said cause for the filing of an answer.
1 As to the first objection, it would seem to be a sufficient answer that at the time the court granted appellee leave to file the supplemental complaint the court was in session during a regular term. It was not a vacation order, therefore, but one made in open court.
This is a matter of practice and governed by the Code of Civil Procedure. Sub-Section 104 of the Code as amended by Chap. 11, Laws of 1901, provides that
"Any hearing of any kind, whether interlocutory or final, unless trial by jury is necessary, may be had in any ease out of regular term time upon five days’ notice, in writing to the opposite party, or his attorney or solicitor, but the court or judge may, upon application, for good cause shown, extend the time of hearing. Such hearing-may be had during the term of court at any time in the discretion of the court.”
Counsel for appellants, insists, that it was error for the court to allow the filing of the supplemental complaint without notice. The section above referred to, provides for notice of five da3s for hearings in vacation but there is no such requirement as to hearings in open court during a regular term. The record discloses that this cause had been pending in the court for almost one year, awaiting further proceedings, and M. Boyd in his affidavit admits Mr. A. B. Fall and Mr. W. A. Hawkins were attorneys of record for appellants at the time the supplemental complaint was filed. The record further shows that the supplemental complaint was served upon Mr. Fall on the same day it was filed'April 7th, 1903. Attorneys of record arc presumed to he present during terms of court wherein their causes ar^ pending, and in contemplation of law chargeable with notice of all proceedings transpiring in open court in causes wherein they are such attorneys. There being no requirement for five days notice, under the facts of this case, counsel are presumed to have been present and to have such notice as the law requires of matters transpiring in open court on the day on which leave was granted to file the supplemental complaint, and the same was filed and served upon them. Youngs v. Broxson, 23 Ala., 684; Sanders v. Savage, 63 S. D., 218.
2 The court was vested with discretion by the last clause of Sec. 104, supra, which does not seem to have been abused, nor was there any abuse of the general diseretion to allow an amended or supplemental bill in equity conferred upon the courts of the Hnited States as may be seen by reference to the case of Berliner Gramophone Co. v. Seamon, 113 Fed. Rep. 750, in which it was held that:
“The granting of leav'e to file an amended and supplemental bill is a matter within the discretion of the court, and its action will not he reviewed in an appellate court unless there has been a gross abuse of this discretion.”
3 The second group of errors assigned, relate both to the order allowing the supplemental complaint to he filed and the rendering of the decree and amended decree thereon, and challenges the power of the court'to do either, 1st, because the supplemental complaint sets up a cause of action irreconcilable and inconsistent with the cause of action set forth in the original and amended complaints. 2nd, It sets up an independent cause "of action which did not exist when the original and amended complaints were filed, 3rd, because the decrees were rendered without service of summons.
That the court has power to allow a supplemental complaint to be filed appears from sub-sections 87 and 89 of the Code which are as follows:
“Sub-Sec. 87. A party may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the cause, or praying for any other or different relief, order or judgment.”
“Sub-Sec. 89. In every complaint, answer or reply, amendatory or supplemental, the party shall set forth in one entire pleading all matters which, by the rules of pleading, may be set forth in such pleading, and which may be necessary to the proper determination of the action or defense.”
It being understood that our Code provides for the blending of legal and equitable remedies and defenses in one action, Sub-Sec. 33, Code, these sections clearly allow the allegation of such facts as will authorize the granting of other and different relief than that sought by the original complaint, the object of course being to end the litigation in a single action.
This court had this subject under consideration in the case of Bremen Min. & Mill Co. v. Bremen, 79 Pac. 806. In that case this court said:
“The only limitation upon the right of amendment to be drawn from a majority of the decided cases is that an entirely new and different cause of action, founded upon facts wholly foreign to the transaction attempted to be set up in the original complaint .cannot be set up by amendment.” Ency. PI. & Pr. Vol. 1, 548.
4 In the present case, the matter set up in the supplemental complaint grows out of and is connected^ with the same transaction as that alleged in the original and amended complaint. The original complaint alleged that the Rio Grande was a navigable stream, and as such under the jurisdiction of the United States: that the Rio Grande -Dam and Irrigation Company, threatened, and were about to commence the construction and maintenance of numerous dams, reservoirs, canals, ditches and pipe lines for the purpose of accumulating large, quantities and possibly all of tbe waters of the Rio Grande into such reservoirs, canals, ditches and pipe lines to be used in irrigating large tracts of land; that the construction of the large dam at Elephant Butte, will check the flow of the waters of such stream and interfere with or destroy the navigability and commercial value thereof; alleged that the said acts were in violation of certain acts of Congress therein set forth and prayed for injunction restraining the defendant company from proceeding with the construction of its proposed irrigation system. The amended complaint was in the main identical with the original, except in that it made the Rio Grande Irrigation and Land Company, Limited, also a defendant and contained allegations to the effect that the latter company was an English corporation organized as an adjunct and agent of the former company, for the purpose of securing funds for the construction of the irrigation system and that the Rio Grande Dam and Irrigation Company had entered into a contract to convey all of their rights in such s.ystem to the latter company. The prayer for injunction is the same, but against both corporations.
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OPINION OP THE COURT.
M’FIE, J.
— A large number of errors are assigned but they may fairly be grouped into four, namely:
1st. The court erred in permitting the supplemental complaint to be filed.
2nd. The court erred in rendering decree upon default of appearance and answer within the time allowed by law.
3rd. The court erred in its order modifying original decree nunc pro tunc.
4th. The court erred in over-ruling motion to vacate said order and decrees and to reopen said cause for the filing of an answer.
1 As to the first objection, it would seem to be a sufficient answer that at the time the court granted appellee leave to file the supplemental complaint the court was in session during a regular term. It was not a vacation order, therefore, but one made in open court.
This is a matter of practice and governed by the Code of Civil Procedure. Sub-Section 104 of the Code as amended by Chap. 11, Laws of 1901, provides that
"Any hearing of any kind, whether interlocutory or final, unless trial by jury is necessary, may be had in any ease out of regular term time upon five days’ notice, in writing to the opposite party, or his attorney or solicitor, but the court or judge may, upon application, for good cause shown, extend the time of hearing. Such hearing-may be had during the term of court at any time in the discretion of the court.”
Counsel for appellants, insists, that it was error for the court to allow the filing of the supplemental complaint without notice. The section above referred to, provides for notice of five da3s for hearings in vacation but there is no such requirement as to hearings in open court during a regular term. The record discloses that this cause had been pending in the court for almost one year, awaiting further proceedings, and M. Boyd in his affidavit admits Mr. A. B. Fall and Mr. W. A. Hawkins were attorneys of record for appellants at the time the supplemental complaint was filed. The record further shows that the supplemental complaint was served upon Mr. Fall on the same day it was filed'April 7th, 1903. Attorneys of record arc presumed to he present during terms of court wherein their causes ar^ pending, and in contemplation of law chargeable with notice of all proceedings transpiring in open court in causes wherein they are such attorneys. There being no requirement for five days notice, under the facts of this case, counsel are presumed to have been present and to have such notice as the law requires of matters transpiring in open court on the day on which leave was granted to file the supplemental complaint, and the same was filed and served upon them. Youngs v. Broxson, 23 Ala., 684; Sanders v. Savage, 63 S. D., 218.
2 The court was vested with discretion by the last clause of Sec. 104, supra, which does not seem to have been abused, nor was there any abuse of the general diseretion to allow an amended or supplemental bill in equity conferred upon the courts of the Hnited States as may be seen by reference to the case of Berliner Gramophone Co. v. Seamon, 113 Fed. Rep. 750, in which it was held that:
“The granting of leav'e to file an amended and supplemental bill is a matter within the discretion of the court, and its action will not he reviewed in an appellate court unless there has been a gross abuse of this discretion.”
3 The second group of errors assigned, relate both to the order allowing the supplemental complaint to he filed and the rendering of the decree and amended decree thereon, and challenges the power of the court'to do either, 1st, because the supplemental complaint sets up a cause of action irreconcilable and inconsistent with the cause of action set forth in the original and amended complaints. 2nd, It sets up an independent cause "of action which did not exist when the original and amended complaints were filed, 3rd, because the decrees were rendered without service of summons.
That the court has power to allow a supplemental complaint to be filed appears from sub-sections 87 and 89 of the Code which are as follows:
“Sub-Sec. 87. A party may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the cause, or praying for any other or different relief, order or judgment.”
“Sub-Sec. 89. In every complaint, answer or reply, amendatory or supplemental, the party shall set forth in one entire pleading all matters which, by the rules of pleading, may be set forth in such pleading, and which may be necessary to the proper determination of the action or defense.”
It being understood that our Code provides for the blending of legal and equitable remedies and defenses in one action, Sub-Sec. 33, Code, these sections clearly allow the allegation of such facts as will authorize the granting of other and different relief than that sought by the original complaint, the object of course being to end the litigation in a single action.
This court had this subject under consideration in the case of Bremen Min. & Mill Co. v. Bremen, 79 Pac. 806. In that case this court said:
“The only limitation upon the right of amendment to be drawn from a majority of the decided cases is that an entirely new and different cause of action, founded upon facts wholly foreign to the transaction attempted to be set up in the original complaint .cannot be set up by amendment.” Ency. PI. & Pr. Vol. 1, 548.
4 In the present case, the matter set up in the supplemental complaint grows out of and is connected^ with the same transaction as that alleged in the original and amended complaint. The original complaint alleged that the Rio Grande was a navigable stream, and as such under the jurisdiction of the United States: that the Rio Grande -Dam and Irrigation Company, threatened, and were about to commence the construction and maintenance of numerous dams, reservoirs, canals, ditches and pipe lines for the purpose of accumulating large, quantities and possibly all of tbe waters of the Rio Grande into such reservoirs, canals, ditches and pipe lines to be used in irrigating large tracts of land; that the construction of the large dam at Elephant Butte, will check the flow of the waters of such stream and interfere with or destroy the navigability and commercial value thereof; alleged that the said acts were in violation of certain acts of Congress therein set forth and prayed for injunction restraining the defendant company from proceeding with the construction of its proposed irrigation system. The amended complaint was in the main identical with the original, except in that it made the Rio Grande Irrigation and Land Company, Limited, also a defendant and contained allegations to the effect that the latter company was an English corporation organized as an adjunct and agent of the former company, for the purpose of securing funds for the construction of the irrigation system and that the Rio Grande Dam and Irrigation Company had entered into a contract to convey all of their rights in such s.ystem to the latter company. The prayer for injunction is the same, but against both corporations.
An alternative writ of injunction having issued, by order of the court, on the 25th day of May, 1897, on the 25th day of June, the defendant corporation filed joint and separate pleas and answer, denying the navigability of the '.Rio Grande, denying that the proposed action of the defendant corporation was unlawful and alleging full compliance with the acts of Congress authorizing the construction of such irrigation system, part of which pleas and answer is as follows:
“That such application, map and surve}'- of such dam and reservoir has a long time prior hereto and prior to the filing of the bill of complaint herein been approved by the Secretary of the Interior of the United States, and is yet so approved, and the construction of such dam and reservoir duly authorized under the provisions of an Act of Congress of March 3, 1891, under which said application for such right to construct such dam and reservoir was duly made as aforesaid.”
On the 27th day of June, counsel for the defendant corporations, filed a motion to discharge the rule to show cause and dissolve the injunction upon the pleas, answer, affidavits and correspondence on file. This motion was fully argued and was sustained by the court, the court gave as reasons, that it would take judicial notice that the Rio Grande was not a navigable stream within the Territory of New Mexico and therefore the amended complaint Jailed to state a ease entitling the complainant to the relief sought. The court dissolved the injunction and dismissed the cause.
There was no trial upon the merits in the court below, and when the cause was heard in the Supreme Court of the United States it was held that the lower court erred in dismissing the bill for want of equity, on the sole ground that the Rio Grande was non-navigable in New Mexico, when the navigability of the river outside of the Territory was also within the scope of the bill.
Nor was the second reversal by the Supreme Court of the United States a reversal upon the merits as the court distinctly placed it upon the ground that the United States had not been -allowed sufficient time to properly prepare and present, its case, and the cause was remanded for that reason. As there has never been a trial upon the merits of the original cause of action, that matter was still before the lower court upon the remanding of the cause, brit the matter set' up in the supplemental complaint was never before the court until after the ease had been remanded for the second time, the mandate therefore could not refer to issues thus raised -for the first time so as to prohibit their consideration.
"The circuit court may consider and decide any matters left open by the mandate of this court and its decision' of such matters can be reviewed by a new appeal.”
In re Sanford Tool Co., 160 U. S., 225; Hinckley v. Morton 103, U. S., 764; Mason v. Pewable Mining Co., 153, U. S. 361.
The supplemental complaint contains a detailed statement of all the proceeding had during the progress of the ease and to the pleadings and specifically to the pleas filed by the appellants in which they rely upon the Act of Congress of March 3rd, 1891, as authority for the construction of their irrigation system.
The supplemental complaint further alleges that:
“Plaintiff further alleges that in and by Section 20 of the said act of March 3rd, 1891, above referred to, it was provided ‘that if any section of said canal, or ditch, shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any uncompleted section of said canal, ditch or reservoir, to the extent that the same is not completed at the date of forfeiture/ and that although five years since the filing and approval of said articles of incorporation, proofs of organization, maps and surveys have long since elapsed, defendant has not complied with the requirements of'said act, but has failed to construct or complete within the period of five years after the location of said canal and reservoir any part or section of the same, and the same has by reasons thereof become forfeited.”
It is further alleged in the supplemental complaint that the temporary injunction was dissolved on the 30th day of June, 1897, and that the appellants were in “no wise hindered, restrained or prevented from complying with the provisions of the act, by any judicial order or process whatsoever.”
The prayer is for forfeiture of all the rights the appellants may have or claim under said act of Congress of March 3rd, 1891, and for injunction and all other relief prayed for in the amended complaint.
Under this state of the record, the objection that the supplemental complaint sets up a cause of action irreconcilable and inconsistent with the amended complaint is not well taken. Indeed the prayer of the supplemental complaint is for the identical relief prayed for in the amended complaint. It is true that a forfeiture of the right of appellants to construct their irrigation system, is also prayed for but this only amounts to an additional reason why an injunction should be granted. The purpose of this entire litigation has been to restrain appellants from constructing the dams, reservoirs, canals, ditches, etc., for the diversion of the waters of the Rio Grande and the obstruction of the alleged navigable portion of said river.
The supplemental complaint is entirely consistent and reconcilable with this purpose.
6 The next objection to the filing of the supplemental complaint and the decree rendered thereon, that it sets > up an entirely independent cause of action — is equally untenable. The plea of the appellants, above referred to, relies upon the Act of Congress of March 3rd, 1891, as -the bases of all rights claimed by appellants.The forfeiture sought by the supplemenal complaint is provided for in the same act. The supplemental complaint, therefore, is directly responsive to this defense and clearly grows out of the same transaction or subject matter of the litigation.
7 The third objection is; that the supplemental complaint sets up a cause of action which did not exist at the time the suit was brought. This is true, but a supplemental complaint seems to be the proper method of bringing such a cause of action before the court. Such seems to be the office of a supplemental complaint.
The case of Jenkins v. International Bank, 127, U. S., 484, is a case wherein a judgment was pleaded in aid of the plaintiffs, which had been rendered after the commencement of the original suit. The court said:
“Having been rendered after institution of the present suit, it was competent for the complainant to bring it forward by a supplemental bill as conclusive evidence of the amount due for which it was entitled to take a decree, and as a complete answer to the defense set up by the plaintiff in error as the assignee of the bankrupt to the relief prayed, for in the original bill, and to the relief sought by the cross bill. It was strictly new matter arising' after the filing of the bill, properly set up but was a supplemental bill, in support of the relief originallv prayed for. It can in no sense be considered as a new cause of action.
In Cedar Valley Land and Cattle Co. v. Coburn, 29 Fed. 587, the court said:
“Now it is insisted that if any thing had transpired since the filing of the original bills and cross bills, changing and affecting the issues, such new matters should have been presented by supplemental bill. I think counsel are right and that such is the true practice.”
Cooper v. Filsher, 1 Bond, 440; N. Y. Security & Tr. Co. v. Lincoln St. Ry. Co. 74 Fed. 6; Hazleton Tripod Borter Co. v. Citizen’s St. Ry. Co. 72 Fed. 325; Maryland v. Green, 30 Fed. Rep. 645.
In Chandler v. Pettit, 19 American Dec. and note cited by appellants, it is held that a supplemental bill may be filed where the original bill states a canse of action. Tested by this rule, there was a clear right to file the supplemental complaint, as the Supreme Court of the United States in effect held when it reversed the lower court’s ruling that the amended bill did not state a cause of action.’
The authorities above referred to are deemed sufficient to show that all of the objections to the order allowing the supplemental complaint to be filed and to the rendition of the decree thereon, must be overruled.
It is further insisted by counsel for appellants, that the court had no jurisdiction of the parties or the subject .matter and therefore no power to render a decree.
8-9 10 11 As the court undoubtedly had jurisdiction both of the parties and the subject matter of the action throughout the prior proceedings, the court did not lose either by the remanding of the cause. The filing of the supplemental complaint, under the circumstances of this case “can in no sense be considered new cause of action.” Jenkins v. International Bank, supra, it was not necessary for new process to issue and that there be service of the same. It was filed in open court and a copy was served upon one of the attorneys of record on the 7th day of April, 1903, and this was sufficient. No appearance having been entered and no answer or other pleading filed, a decree was rendered on the 21st da} of May, 1903, declaring a forfeiture of all the right of the appellants to construct or complete the proposed irrigation system or any part thereof, and granting a perpetual injunction. At the next regular term of the court there still'being no appearance or pleading on behalf of the appellants it appearing- that there had been a clerical mistake made in the original decree, in that the date of 'the Act of Congress was given as 1901, when it should hRve been 1891, the court ordered that the decree be ihodifled so as to correct what was evidently a purely clerical error, as the supplemental complaint gave the date as 1891 and the decree thus modified was re-entered in full'. There was no error in this action of the court as our Code authorizes such action. Sub-Sec. 85, Code.
12 On the 31st day of October, 1903, Messrs. 'Klóek- & Owen, attorneys for appellants, filed a motion to set aside and vacate the order allowing supplemental complaint to be filed and the decree rendered, and. that they be allowed to file an answer, which was tendered''with the motion, and to make defense to the action. Thik motion was overruled upon the ground that there was' no irregularity in the proceedings and that the court-was not warranted in vacating the order and decree.
Appellants assign error in this ruling.
13 There being no error or irregularity in the court’s ■order allowing the supplemental complaint to be filed, the same having been done in open court, and a copy of the same having been served upon one of the attorneys of record on the same day on which it was filed, the 'statute required an answer or other proper pleading to be filed within twenty days from the date of such filing and in the event of failure to plead or secure additional time to plead, neither of which were done in this case, it was perfectly'regular for the court to render decree. Gregory v. Pike, 29 Fed. 588. Appellants seek to be- relieved from their own default by alleging neglect on the part of their attorneys. Mr. Boyd-in his affidavit admits that Mr. Fall was at the time, one of the attorneys of record of appellants. Mr. Boyd does not deny that a copy of the ■supplemental complaint was served upon Mr. Fall -nor does he state ■ when the document was ' received by him. He states “that after the 7th day of April, 1903, the deponent while at Philadelphia, Pa., received from J. H. McGowan by mail what purported to be a proposed supplemental bill of complaint in behalf of complainant.” ■ Mr. McGowan was also an attorney of the appellant. ' 1
Mr. Boyd further admits that he had actual ■' notice that the'decree had been rendered October 19th, 1903. More than ten olajes having elapsed after this notice before this motion was filed and long after the decree was rendered, it could not be entertained under Sub-Sec. 134 of the Code which provides that a motion to set aside a judgment rendered out of term time will not be entertained unless the same is filed and a copy served upon the opposite party within ten days after such finding or judgment ivas rendered. The motion, therefore, must be made under Sub-Sec. 137 of the Code 'which provides that "Judgments may be set aside for irregularity,, on motion filed at any time within one year after the rendition thereof.”
As has been pointed out there was no irregularity in the rendition of this judgment.
Notice to an attorney of record is notice to client, 3 Am. & Eng. Ency. of Law, 2nd Ed., 323. The client cannot plead negligence of his attorneys as grounds of relief 3 A. & E. Ency. of Law, 2nd Ed. 324; Putnam v. Day, 22 Wall, 64; Terry v. Commercial Bank, 92, U. S., 454.
There being service of a copy of the supplemental complaint upon one of the attorneys of record on the day on which it was filed it Avas entirely regular for the court to render the decree when applied for 44 days after such service, in the absence of any appearance or pleading by the appellants. It is immaterial whether Mr. Boyd had notice or not as he was not a party to the suit except as a director of the corporations or other officer thereof, but the appellant corporations were the parties to the suit and they Avere represented by attorneys of record upon whom service was made. It is but fair to, Mr. Fall to presume from Mr. Boyd’s affidavit, that he did forward the copy of the supplemental complaint served upon him to his co-counsel Mr.-McGowan as soon as the same was delivered to him, as the affidavit says it was not received until after April 7th, 1903, this being the same date on which the same was served upon Mr. Fall. HoAvever that may be, the court beloAv distinctly found that no irregularity had intervened in the rendition of the decree and over-ruled the motion for that reason, and we see no error in the action of the court.
From the views above expressed, it is apparent that it is not necessary to consider the answer tendered with the motion, and the filing of the same was refused for the same reason that justified the over-ruling of the motion.
14 Appellant insists that they were restrained from constructing their irrigation system by the United States, and therefore no right of forfeiture existed but the record before us shows, that the injunction originally granted was dissolved July 30th, 1897, and was never reinstated. The injunction granted upon the declaration of forfeiture, was more than five years after the dissolution of the former injunction, this contention therefore does not appear to be well founded.
There being no error presented by the record in the case, the judgment of the court below will be affirmed. It is so ordered.
William J. Mills, G. J., William H. Pope, A. J., Edward A. Mann, A. J., Ira A. Abbott, A. J., concur. Parker, A. J., having heard the case below did not participate in this decision.