Petition for rehearing in Gila Reservoir Co. v. Gila Water
Co., 202 U. S. 270
The failure to make a defense by a party who is in court is,
generally speaking, equivalent to making a defense and having it
overruled, and where the question of the jurisdiction of a court in
a particular case over property in its actual possession was not
presented in that court, the appellant cannot, in this Court,
question the power of that court to order a sale of the property or
the title conveyed to the purchaser.
The facts are stated in the opinion.
MR. JUSTICE BREWER delivered the opinion of the Court.
During the October Term, 1905, and on May 14, 1906 202 U. S. 202
270, the decree of the Supreme Court of the Territory of Arizona in
this case was affirmed. On May 26 (the last day
Page 205 U. S. 280
of the term) an order was entered which in effect continued the
jurisdiction of this Court to the present term, giving opportunity
to appellant to present a petition for rehearing during the
vacation. That petition was presented, and, in the early part of
this term, after full consideration, was denied. Subsequently, lest
in the confused state of the record it might be supposed by either
of the parties that the facts had been misapprehended, we, on
January 7, 1907, entered an order withdrawing the memorandum
denying the petition for rehearing and granting leave to counsel on
both sides to file such additional briefs as they desired. In
pursuance of this leave, briefs on both sides have been filed, and
we have again examined the record.
This consists of the pleadings, the decree in favor of the
defendant, a bill of exceptions divided into two parts -- one being
a statement of exceptions and the other a narrative of the
"circumstances and evidence" -- the decree and opinion of the
supreme court, and a statement of facts prepared for the review by
this Court. The opinion was filed March 26, 1904, and the statement
of facts allowed February 21, 1905, nearly a year after the
decision. In addition, there appears a motion made in the supreme
court by the appellee to strike from the files the abstract of
record for several reasons, one of which was that it did not
contain the findings of fact and the conclusions of law of the
district court. This is followed by the suggestion of a diminution
of the record in what purports to be these findings and
conclusions. It does not appear that any action was taken by the
supreme court upon this motion, or any leave given to amend the
record by the addition of the findings and conclusions.
We copy in full the statement of facts prepared and allowed by
the supreme court:
"Statement of facts in this case in the nature of a special
verdict made by the Supreme Court of the Territory of Arizona, and
also rulings of the court below on the admission and rejection of
evidence as excepted to on the foregoing transcript
Page 205 U. S. 281
of the record in the above-entitled cause, to be used by
appellant herein in its appeal to the Supreme Court of the United
"That the above-entitled cause was tried in the court below upon
the complaint, which was the statement of a cause of action to
quiet title to the property described in said complaint against the
defendants therein mentioned; the amended answer of the Gila Water
Company, one of the said defendants, denying the plaintiff in said
complaint being the owner of the property therein described, said
defendant further alleging peaceable and adverse possession of the
property described in plaintiff's complaint under the title and
color of title for more than three years preceding the date of the
commencement of the above action, and also alleging peaceable and
adverse possession of said property for more than five years before
the commencement of the suit, using and enjoying the same, paying
taxes thereon, claiming under deeds duly recorded; the
cross-complaint of said defendant, Gila Water Company, claiming to
be the owner in fee simple of all the property described in
plaintiff's complaint in said cause, and the answer of appellant
herein to said Gila Water Company's cross-complaint;"
"That all of the other defendants mentioned in said complaint
answered and disclaimed any right, title, and interest in and to
the property described in said complaint;"
"That this supreme court adopts and makes a part of this
statement of facts the bill of exceptions in this case, Part I,
exceptions, Part II, circumstances and evidence, as certified and
signed on the twenty-fourth day of November, 1902, by Hon. Edward
Kent, the presiding judge who tried this cause below, the same as
if it were set forth at length herein;"
"That no order was made in the court below consolidating the
case known as No. 1728 in the trial court and the case known as
No.1996 in the same court, said cases being those the record of
which is referred to in the above-mentioned bill of exceptions;
Page 205 U. S. 282
"That the receiver appointed in said case No. 1728 made the sale
and executed the deed under which the Gila Water Company, appellee,
claims title to the property in dispute; that no order was in terms
made extending the receivership in said case No. 1728 to said case
No.1996, the latter case being the one in which said receiver made
said sale, and, by the judgment rendered therein, assumed to convey
the title to said property; that the only orders made in said case
No.1996 relating to said receivership are those dated May 29, 1894,
November 23, 1898, July 21, 1894, November 20, 1894, and January
10, 1895, referred to in said bill of exceptions."
"That from the foregoing record and facts, the court finds that
plaintiff and appellant herein, Gila Bend Reservoir &
Irrigation Company, a corporation, has not and did not have at the
commencement of this action, any cause of action in respect to, nor
did it have and has not now any right, title, or interest in and to
the property or any part thereof mentioned and described in the
complaint herein; that the defendant appellee, Gila Water Company,
a corporation, was at the time of the commencement of this action
and is now the owner in fee simple and in possession of all the
property mentioned and described in plaintiff's complaint
Appellant invokes the doctrine laid down in Herrick v.
Boquillas Land & Cattle Company, 200 U. S.
, 200 U. S. 98
Harrison v. Perea, 168 U. S. 311
168 U. S. 323
and cases cited in the opinion, to the effect that our jurisdiction
on an appeal from the supreme court of a territory,
"apart from exceptions duly taken to rulings on the admission or
rejection of evidence, is limited to determining whether the
findings of facts support the judgment."
Of course, if there are no findings or statement of facts and no
exceptions in respect to the introduction or rejection of
testimony, the decree will be affirmed if responsive to the
allegations of the pleadings.
The statement of facts prepared by the supreme court, standing
by itself, is incomplete, but it is helped by a reference to the
bill of exceptions in the trial court, which is adopted
Page 205 U. S. 283
and made part of the statement. True, much of the matter in this
bill is a mere recital of testimony, but we find in it copies of
certain orders and decrees. Putting all together, we are enabled to
see clearly the scope of the inquiry. It appears that, prior to
this litigation, two suits were brought in the trial court, one
numbered 1728 and the other 1996. The appellant was defendant in
the latter. In the first, an order was made December 6, 1893,
appointing James McMillan receiver of the property now in question.
The complaint in suit No. 1996, alleging that the court had already
appointed a receiver in the prior case, prayed the appointment of a
receiver or an enlargement of the powers of the one then acting,
and that he take possession of the property and sell the same to
pay the debts. No order appears of record in terms either
consolidating the two cases or extending the receivership in case
No. 1728 to case No.1996. A decree was entered in suit No.1996, of
date November 20, 1894, which, after finding the amounts due
certain creditors, adjudged and decreed
"that James McMillan, the receiver heretofore appointed by this
Court, and now in possession of said premises, under the orders of
this Court, proceed to advertise and sell said property and
distribute the proceeds as directed in the decree."
On January 3, 1895, a report, bearing a double heading, to-wit
the titles and headings of both suits Nos. 1728 and 1996, and
purporting to be of a sale of the property by James McMillan,
receiver, under the order and decree in suit No.1996, was filed in
the court, and on January 10, 1895, an order bearing the same
double heading of the two suits was entered, confirming that sale.
Subsequently a deed of the property to the purchaser was executed,
purporting to be from the receiver duly appointed in the two equity
suits, with titles and numbers as above.
The decree in suit No.1996 was appealed to the territorial and
United States Supreme Courts, and affirmed by each of them. The
briefs of appellant in the territorial supreme court show that the
question of the jurisdiction of a court in
Page 205 U. S. 284
a particular case over property in its actual possession was not
presented. In the brief of appellant filed in this case, this
"So confident were counsel of the lack of equity in the bill and
of reversal by the appellate courts that the fundamental question
of jurisdiction, now urged, was overlooked."
"Indeed, the attention of counsel was so centered upon that
point and the question of change of venue that, in the brief in
this Court ,it was even stated that the receiver had been appointed
upon motion of the plaintiffs in suit No.1996, and that the decree
therein of November 20, 1894, provided for the appointment of a
It is now contended that, inasmuch as the question is one of
jurisdiction, neither the omission to call attention to the matter
in the prior litigation nor the misrecital of fact operates to
render the decree in that case res judicata
question, but leaves the matter open for present inquiry. Counsel
are mistaken. In that litigation, the present appellant was the
defendant. The property was in the possession of the court, even if
held under a prior receivership. The decree directed its sale. It
was sold. The sale was confirmed, the deed made, and the property
delivered to the purchaser. The appellant at least cannot now
question the jurisdiction of the court in that suit, or the title
which it conveyed to the purchaser at the sale. A failure to make a
defense by a party who is in court is, generally speaking,
equivalent to making a defense and having it overruled.
Further, in the opinion heretofore filed, after referring to the
declaration of the supreme court of the territory that the trial
"court, by its action, ratified the acts of the receiver in the
second suit, and thereby, in effect, extended his power and
authority as such receiver to such second suit," we said (p.
202 U. S.
"The objection made by the appellant to it is, as we have
indicated, that suit No.1996 was a proceeding in rem,
that the court did not acquire jurisdiction of the property
Page 205 U. S. 285
for the reason that it was in the custody of the court in suit
No. 1728, and that the court in the latter case did not extend the
receivership to the No.1996, nor consolidate the suits, and
therefore had no power to order the sale of the property by the
receiver in No. 1728."
"This is tantamount to saying that the absence of formal orders
by the court must prevail over its essential action. It is clear
from the record that the district court considered the cases
pending before it at the same time, considered No.1996 as the
complement of No. 1728, regarded the cases in fact as consolidated,
and empowered the receiver appointed in 1728 to sell the property
and distribute the proceeds as directed by the decree in 1996."
Nothing further need be added to show that the case was rightly
decided. The petition for a rehearing is denied.
MR. JUSTICE MOODY took no part in the decision of this case.