Perego v. Dodge

Action by William Perego against W. H. Dodge, E. P. Ferry, A. B. Richardson, J. N. Jacobson, Martin McGrath, and Mrs. Martin McGrath. From a judgment of the territorial supreme court affirming a judgment for defendants (33 Pac. 221), plaintiff appeals. Affirmed.

This was a suit brought by William Perego against W. H. Dodge and others in the district court for the Third judicial district of the territory of Utah, in pursuance of the provisions of section 2326 of the Revised Statutes. The complaint alleged the title of plaintiff to a mining claim, called the Perego, of which he averred he was in possession; described it; and stated the date of location, existence of the vein, and the other facts entitling him to a decree founded upon such title. It was then alleged that defendants had made application for a patent to certain mining claims known as the Mayflower Nos. 4 and 5, and that they had wrongfully surveyed said claims so as to conflict with plaintiff's claim, and, after describing the area in conflict, averred that notice of the application for patent by defendants was published; that, within the 60-day period of publication, plaintiff filed in the land office his adverse claim, and brought this suit within 30 days thereafter. Plaintiff prayed judgment and relief against defendants; 'that the plaintiff is the owner and lawfully in and entitled to the possession of the last above described premises, the area in conflict between the said Perego mining claim and the alleged consolidated claim of Wm. H. Dodge et al. upon alleged Mayflower No. 4 and Mayflower No. 5 lode locations and the lodes therein, and quieting and confirming plaintiff's title thereto and possession thereof; that the defendants have no title to or right of possession of said conflict area, or the lodes therein, or any part thereof; that the defendants be restrained pending the action and upon trial perpetually from entering in or upon said conflict area, or the lodes thereon, or any part thereof, or mining in or extracting any ores or mineral therefrom, and from in any way interfering with the possession thereof; also, that the plaintiff have all other and further proper relief, with costs of suit.'

Defendants answered, denying the material allegations of the complaint, and further affirmatively set up the necessary jurisdictional facts of their location, averred that the required assessment work had been fully performed, claimed a valid location of the Mayflower Nos. 4 and 5, and prayed that defendants be adjudged to be the owners and entitled to the possession of the said Mayflower Nos. 4 and 5 lodes and mining claims, including the area in conflict, and for all other proper relief, and for costs of suit.

The case came on for trial, and the parties appeared by their attorneys, as the record states, 'present and ready for trial, and the case is tried before the court.' The trial occupied three days, May 6, 7, and 9, 1891, and on May 11th the following entry was made: 'This case having been heretofore tried and submitted to the court, and the court, being now fully advised, finds the issues for the defendants, and it is ordered that decree be entered herein in favor of the defendants, and against the plaintiff, and quieting and confirming the title of the defendants to the area in conflict herein, and plaintiff is allowed thirty days' stay and the same time to file notice of motion and statement on motion for new trial.' The district court made findings of fact and conclusions of law, which commenced as follows: 'This cause duly coming on for trial on the merits before the court without a jury, and the court having heard the pleadings, evidence, and arguments of the respective counsel, the court now makes and files the following findings of fact and conclusions of law.' The court found the claims of defendants valid, and that of plaintiff invalid as against defendants, and that defendants were entitled to a decree 'adjudging them to be the owners (subject only to a paramount title of the United States) and in and entitled to the possession of the whole and every part of the said Mayflower No. 4 and Mayflower No. 5 lode mining claims, and, as part thereof and belonging thereto, the conflict areas described in the complaint, and the whole thereof, and adjudging that the plaintiff had not at the time he filed his protest and adverse claim, or at any time since, and has not now, any right, title, or interest in or to said or any part of said conflict areas described in the complaint, and forever enjoining, estopping, and debarring the plaintiff, and any and all persons claiming by, through, or under him, from at any time setting up any claim of right or title to said or any part of said mining claim or conflict area, and for ver confirming and quieting the defendants' right and title thereto, and awarding the defendants their costs herein as against the plaintiff.'

These findings and the decree in accordance therewith were filed and entered on August 18, 1891. On August 5, 1892, plaintiff, acting through other counsel than appeared at the trial, filed a notice of intention to move the court to set aside and vacate the findings and decision and decree, and for a new trial, on the ground: '(1) Irregularity in the proceedings of the court by which the plaintiff was prevented from having a fair trial; (2) errors of law occurring at the trial, to wit, the trial of said cause by the court without a waiver of jury by the plaintiff; (3) because the findings and decree are irregular and void as appears by the record.' This notice was accompanied by an affidavit that the value of the property exceeded $1,000; that plaintiff had not by himself in person or by attorney, at any time, orally or in writing, waived his right of trial by jury in said suit, and that he had at all times desired to have the same tried by a jury; that no notice of the decision of the court in the cause had been served upon him or his attorney.

Notice of appeal to the supreme court of the territory of Utah was filed August 15, 1891, and on August 16th plaintiff was allowed 30 days' time to file an undertaking on appeal. On September 3d a new notice was served of the motion to vacate and set aside the findings and decree, and for new trial. On September 10th, 30 days were allowed plaintiff for an undertaking on appeal. On September 19th the motion to vacate and set aside the decree and grant a new trial was submitted and overruled; and on October 4, 1892, notice of appeal from that order was given, and an undertaking on appeal was subsequently filed. No statement or bill of exceptions appears in the record. The case was brought to a hearing in the supreme court of the territory of Utah, and the judgment of the district court was affirmed, with costs. 9 Utah, 3, 33 Pac. 221. Affidavits of the value of the matter in dispute were submitted, and an appeal allowed to this court.

B. F. Lee, for appellant.

Arthur Brown, for appellees.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.