The point was made that we were wrong in saying that a plaintiff who had shown no right in himself could not object to the insufficiency of the pleading or proof of the defendant in an adverse claim. It is true that Thomas v.Chisholm, 13 Colo. 105, 21 Pac. 1019, was reversed because the allegations and proof of the defendants were insufficient to support their claim to a patent from the United States, but it does not there appear whether the allegations and proof of the plaintiff were sufficient to support such claim for him. In Kirk v. Meldrum,28 Colo. 453, 65 Pac. 633, it was held that a plaintiff in an adverse suit who had failed to prove a title as against the United States, i. e., his right to a patent, could not object to a mere dismissal of the suit without any judgment in favor of the defendant's title. The action of the lower court was upon motion for nonsuit. In Connolly v.Hughes, 18 Colo. App. 372, 71 Pac. 681, it was held that a failure by a plaintiff in an adverse suit to offer any evidence in his own behalf was a waiver of his claim so that he could not object afterwards that the defendants had not shown a right to a verdict and judgment in their favor.
Now we have a case where the plaintiff, as we have shown, must be assumed to have failed to prove his case as against the United States. What standing has he to object that the judgment is in favor of the defendant? We cannot see that he has any. The United States is not a party to the proceedings; at least one secretary of the interior has held that the land office is not bound by the decision of the court in an adverse suit; and the Supreme Court of the United States has spoken approvingly of that decision. Perego v. Dodge, 163 U.S. 160, 168,16 Sup. Ct. 971, 41 L. Ed. 113. The federal district court of Wyoming, citing Perego v. Dodge, says that if a plaintiff
has no case it would be useless to require the defendant to proceed * * * "when that judgment would be merely advisory to the Interior Department"; and the court says that "the defendant in an adverse suit may not be required to himself pray for an adjudication in his own behalf, but may defend and defeat the plaintiff upon the weakness of plaintiff's own claim." Under these holdings and in reason there can be no answer to the proposition that a plaintiff in an adverse suit who has failed to prove his case as against the United States is not in a position to object that the defendant has failed to prove his as against the United States. The United States will take care of that before it grants a patent. When the plaintiff shows, prima facie, a right to a patent, a different question is presented.
The motion for rehearing is denied.
MR. CHIEF JUSTICE ALLEN and MR. JUSTICE WHITFORD concur.