A complaint in a suit in a district court in Idaho Territory
prayed for an injunction restraining the defendant from interfering
with the possession of a mining claim which the plaintiff had, by a
written agreement, licensed the defendant to work, for a
compensation, the agreement also containing a provision for the
conveyance of the claim to the defendant on certain terms. The
complaint also prayed for an accounting concerning all ore taken
from the mine by the defendant and the payment to the plaintiff of
the amount due to the plaintiff under the agreement. The defendant
filed a cross-complaint praying for a specific performance by the
plaintiff of the contract to convey. The district court, by one
judgment, granted to the plaintiff the injunction asked, and
ordered an accounting before a referee, and dismissed the
cross-complaint. On appeal by the defendant, the judgment was
affirmed by the supreme court of the territory, and the defendant
appealed to this Court.
Held:
(1) The judgment was not final or appealable.
(2) It made no difference that the judgment dismissed the
cross-complaint.
(3) The right of the defendant to appeal from the judgment, so
far as the cross-complaint is concerned, will be preserved, and
time will run against him, as to all parts of the present judgment
of the district court only from the time of the entry of a final
judgment after a hearing under the accounting.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is a suit brought in the district court of the Second
Judicial District of Idaho Territory in and for the County of
Alturas by George F. Settle and Jacob Reeser against John B.
Winters, Frank Ganahl, and John Winkelbach.
Page 132 U. S. 208
The complaint alleges that the plaintiffs, being the owners of a
mining property, licensed the defendants to work it on the terms
and conditions expressed in a written agreement and a supplemental
agreement for a definite period; that under the agreement, the
defendants were to work the mine during that period at their own
expense, keep the property free from liens, and pay to the
plaintiffs, as a consideration, one-half of the gross proceeds from
the mine; that if the defendants should pay to the plaintiffs on or
before November 27, 1883, the termination of the said period, out
of the proceeds of the mine, or otherwise, $40,000, the plaintiffs
should convey the property to the defendants; that in the event of
such payment by the defendants to the plaintiffs within the time
specified, any and all sums theretofore received by the plaintiffs
from the defendants as consideration for the use and working of the
mine should be credited upon and deducted from the $40,000; that if
the defendants should fail to comply with any of their agreements
or should not on or before the day named pay the $40,000 to the
plaintiffs, they should forfeit all rights under the agreement and
no longer work the property; that the defendants proceeded to work
the mine, and continued, during the period mentioned, to extract
large quantities of gold and silver ore from it; that on the 24th
of November, 1883, the agreement was extended in writing to
December 27, 1883; that the defendants had paid to the plaintiffs
only $21,000 out of the $40,000, which sum was realized out of the
working of the mine, and was not in excess of the one-half of its
gross proceeds; that the defendants were continuing to work the
mine, and were insolvent, and, during the thirty-days extension of
time had extracted and removed large quantities of ore for which
they had failed to account to the plaintiffs, and that the
defendants threatened to continue to extract the ore. The prayer of
the complaint is for an injunction restraining the defendants
during the pendency of the suit, and also by a final order on the
hearing, from entering upon on interfering with the possession of
the property or from extracting or removing from the mine any rock
or ore, and for an accounting
Page 132 U. S. 209
by the defendants with the plaintiffs concerning all rock or ore
taken from the mine by the defendants, and for the payment by them
to the plaintiffs of a moiety thereof, and that the amount found to
be due to the plaintiffs upon such account be decreed to be a lien
upon all rock or ore remaining in the hands of the defendants.
After a demurrer to the complaint had been overruled, the
defendants put in an answer to it. They also filed a
cross-complaint praying that the plaintiffs might be decreed
specifically to execute and perform their contract to convey the
property to the defendants, on receiving from them the remainder of
the purchase money which might be equitably due therefor, and for
an injunction, to be made perpetual on the hearing, restraining the
plaintiffs from interfering with the possession by the defendants
of the mining claim, and the works and openings leading
thereto.
This cross-complaint was answered by the plaintiffs, and the
case was tried by the court on evidence, oral or documentary,
adduced by the respective parties. It made certain findings of fact
and conclusions of law, and entered a decree adjudging that the
defendants be enjoined perpetually from entering upon or
interfering with the possession of the mining claim mentioned in
the complaint, and that the plaintiffs were entitled to an
accounting with the defendants of and concerning all rock and ore
taken from the mine by the defendants during the term mentioned and
not already accounted for, and referring it to a referee to take
and state such account. The decree further adjudged that the
defendants take nothing by their cross-complaint; that it be
dismissed; that they were not entitled to any order restraining the
plaintiffs from the enjoyment of the premises, prior to or pending
any appeal that might be taken, and that the plaintiffs recover
from the defendants their costs.
On an appeal by the defendants to the supreme court of the
territory from that judgment, it was affirmed. The defendants have
brought the case here by appeal, and briefs have been filed by both
parties on the merits. But we are of opinion that the decree was
not a final one, and is not appealable.
Page 132 U. S. 210
The judgment of the supreme court simply affirmed the judgment
of the district court. As regards the relief sought by the
plaintiffs, the latter judgment merely enjoined the defendants, and
ordered an accounting by them before a referee concerning the rock
and ore taken by them from the mine. The bill prays for such
injunction and for such accounting, and for the payment to the
plaintiffs of what shall be found due to them upon such accounting.
In this respect, the decree is of the same character as that
considered by us in
Keystone Manganese & Iron Co. v.
Martin, decided November 11, 1889,
ante, 132 U. S. 91, where
the decree was held not to be final or appealable.
Nor does it make any difference that the decree in the present
case dismisses the cross-complaint of the defendants. The filing of
the cross-complaint was not the institution of a separate suit, but
grew out of the original complaint. There was but a single decree,
and that was entitled in the original suit. The right of the
defendants to appeal from the decree, so far as their
cross-complaint is concerned, will be preserved, and time will run
against them, as to all parts of the present judgment of the
district court, only from the time of the entry of a final decree
after a hearing under the accounting which is to be had.
Ayers
v. Chicago, 101 U. S. 184,
101 U. S.
187.
Appeal dismissed.