Wedekind v. Bell , 26 Nev. 395 ( 1902 )

This case was argued and submitted, but before judgment was rendered the justices of the court were informed that the controversy between the plaintiff and the defendants had been settled. We subsequently had citation served on each of the counsel for the respective parties to the suit, that they appear before the court on a day named, and show cause why the case should not be dismissed for the reason that all controversy between the parties plaintiff and defendant as to the matter in litigation had ceased. On the day named, counsel representing each side of the case appeared before the court, and stated that all controversy between the parties had not ceased; but that only a part had been settled, and a part remained unsettled; and requested the court to take the case on to a judgment. Counsel then stated to the court exactly what had been done in the way of settlement between the parties plaintiff and defendant. On the facts stated, two questions arise: First, is all controversy between the plaintiff and defendants as to the property in suit settled? And, second, if settled, what disposition of this case should be made by this court?

Under the facts as stated to the court, we think all controversy between the parties as to the property in suit has been settled. Referring to the accompanying diagram, which is in all essential respects a copy of an exhibit in the case, to wit: plaintiff's map A, with the Reno Bell claim added, showing its easterly side line, line 9 (10 on the diagram) — one can understand the matter.

Plaintiff claimed under his Safeguard mining location, laid, as can be seen by inspection of the diagram, on four kinds of land, to wit: (1) unpatented lands of the United States in section 28; (2) unpatented railroad lands in section 29

belonging to plaintiff or under his control; (3) patented railroad land in section 33 belonging to plaintiff; and (4) lands patented, under desert-land applications, in section 32, belonging to defendants. The matter in dispute was the ore bodies under the surface of defendant's land in section 32. The plaintiff alleged that the said ore bodies had their "apex" on his land in section 33, and on his Safeguard mining location, partly lying on his said land in said section 33.

Plaintiff in his prayer for relief asked the judgment of the court that said ore bodies were his by reason of their "apex" being on his said land and claim; and also that defendants be perpetually restrained from interfering therewith.

On the hearing of the citation, it appeared that the plaintiff had conveyed to a third party, Mr. John Sparks, all of plaintiff's rights, title, and interest to the lands and ore bodies lying to the eastward of the easterly side line of the Reno Bell claim. Said easterly side line ran about 135 feet to the west of the ore bodies in dispute, said ore bodies being near the spot marked on the diagram "Bell Shaft House"; northwesterly much further than the Safeguard location extended; and southeasterly considerably further than said ore bodies were shown to extend.

It further appeared that Mr. Sparks and the defendants had settled all of their contention; that it had been agreed that all suits between the parties except this suit in this court should be dismissed; and that whatever judgment this court might render in this case should have no effect on the said settlement, but that said settlement should in all respects stand, the judgment of this court to the contrary notwithstanding.

To us it seems clear: (1) That the plaintiff, Mr. Wedekind, has conveyed all of his right, title, and interest in the matter in controversy to a third party, Mr. Sparks; for the controversy was as to land and ore bodies lying to the eastward of said Reno Bell easterly side line, and nothing to the westward thereof was in controversy; and (2) that Mr. Sparks and the defendants have settled all of their dispute as to the matter in controversy, the defendants having conveyed all of their interest to Mr. Sparks. Of course, under the state of facts above mentioned, Mr. Sparks has become dominus litis on each side of the case; and, under the decisions of courts and in sound legal reason, the ease should proceed no further for the want ofdominus litis on each side thereof.

The following authorities support this doctrine:Little v. Bowers, 10 Sup. Ct. 620,33 L. Ed. 1016; Henkin v. Guerss, 12 East, 247;Smith v. Railroad Co., 29 Ind. 546; Board ofChosen Freeholders of Essex. Co. v. Board of ChosenFreeholders of Union Co., 44 N. J. Law, 438;McConnell v. Shields, 1 Scam. 582;Livingston v. D'Orgenoy, 1 Mart. (O. S.) 96;Meeker v. Straat, 38 Mo. App. 239;Judson v. Jockey Club, 14 Misc. Rep. 350,36 N. Y. Supp. 126; Haley v. Bank, 21 Nev. 127; and State v. McCullough, 20 Nev. 154.

On the hearing of the citation to show cause, the question was raised whether, after a case had been argued and submitted to the court for its decision and judgment, it could be disposed of without decision and judgment for the reason that the parties to the suit had settled it between themselves. We think it can, and should be.

In Judson v. Jockey Club, 14 Misc. Rep. 350,36 N. Y. Supp. 126, cited above, and Dudley v. Same, (Com. Pl. N. Y.) 36 N. Y. Supp. 128, a case had not only been argued and submitted to the court for its decision, but the court had also rendered its judgment and decision, and the same had been entered of record; and yet, when the court obtained knowledge that the suit was fictitious, that there was not a dominus litis on each side thereof, it ordered its judgment and decision to be withdrawn from the files of the court.

In the first of the last two cases, on page 127, 36 N. Y. Supp., the court says: "Courts of judicature are organized only to decide real controversies between actual litigants. When, therefore, it appears, no matter how nor at what stage, that a pretended action is not a genuine litigation over a contested right between opposing parties, but is merely the proffer of a simulated issue by a person dominating both sides of the record, the court, from a sense of its own dignity, as well as from regard to the public interests, will decline a determination of the fabricated case so fraudulently imposed upon it. (Lord v. Veazie, 8 How. 255, 12 L. ed. 1067;Cleveland v. Chamberlain, 1 Black, 426;Wood-Paper Co. v. Heft, 8 Wall. 333;Bartemeyer v. Iowa, 18 Wall. 134, 135; SanMateo Co. v. Southern Pac. R. Co., 116 U.S. 138;Washington Market Co. v. District of Columbia,137 U.S. 62, 11 Sup. Ct. 4; South Spring Hill GoldMin. Co. v. Amador Medean Gold Min. Co., 145 U.S. 300, 12 Sup. Ct. 921; ManufacturingCo. v. Wright, 141 U.S. 696, 700,12 Sup. Ct. 103; California v. San Pablo T. R.Co., 149 U.S. 308, 314, 13 Sup. Ct. 876;Hoskins v. Lord Berkeley, 4 Term R. 402; Inre Elsam, 3 Barn. C. 597; Wood v. Nesbitt, (Sup.) 19 N. Y. Supp. 423."

And in both cases, on the page following (page 128, 36 N. Y. Supp.), the court says: "The report of the referee shows that the controversy before the court was fictitious; that the transaction out of which it was supposed to grow — a horse race for stakes — was a pretended contest, arranged so as to form the basis of suits at law in which, without real adversaries before the court, an adjudication might be procured to use for other purposes than the enforcement of the right involved in the pretended suits. Upon the intervention of third parties having interests that might be affected by a decision in those proceedings, we ordered a reference to ascertain the facts (36 N. Y. Supp. 126); and, the report of the referee bearing out the contention of such parties, it only remains for us to dismiss the proceedings in this court growing out of the pretended and collusive transactions referred to. In addition to the cases already cited by us on the question of the right of third parties to intervene, we refer to the case of Haley v. Bank, in the Supreme Court of Nevada on March 10, 1891, reported in 12 L.R.A. 815, with note (s. c. 21 Nev. 127), in which it was held that an attorney, as amicus curiæ, may move to dismiss an action as collusive, and it is his duty to do so if he knows, or has reason to believe, that the action is fictitious. We shall, therefore, enter an order dismissing the appeal from the district court in the case ofJudson v. Jockey Club, and the appeal and the action in this court in Dudley v. SameDefendant, and direct that the opinions of this court in those eases be withdrawn from the files, and that the costs of the reference be paid by the parties to those appeals. All concur."

We deem it proper to say here that the case before us is not in any objectionable or bad sense "fictitious." On the contrary, up to the time of the settlement thereof there was between the parties a very real contest, and the contest was very earnestly carried on. There is no possible blame attachable to any persons connected with the case. The settlement of disputes amicably out of court instead of at arm's length in court is certainly commendable, and not blamable. But, as stated above, when the controversy between the parties litigant ceases, then the proceedings in court should follow its lead, and also cease.

It is ordered and adjudged that the case in this court is dismissed.