#### WETZSTEIN, Appellant, *v.*BOSTON & MONTANA CONSOLIDATED COPPER & SILVER MINING COMPANY, Respondent.

(No. 1,618.)

(Submitted June 19, 1903.

Decided July 1, 1903.)

*Actions*—■ *Demurrer*— *Another Action Pending*— Appeal— *Identity of Parties*— Same *Cause of Action.*

1. Where a complaint shows that a former action, between the same parties and for the same cause, is before the supreme court undetermined on appeal, a demurrer is properly sustained thereto.

2. The action is between the same parties when it appears from the complaint that the defendant in the action is the successor in interest of the defendant in a former action.

o. The action is for the same cause, if based on the same assertion of title as in a former action, though the plaintiff in the subsequent action prays for an injunction, the appointment of a receiver, and for an accounting, where he was entitled to such relief as to the injuntion and receiver in the former action, and fails to state facts sufficient to constitute a cause of action for an accounting, by not averring a demand for*an accounting and a denial thereof by defendant.

*Appeal from District*Court, *Silver Boio County; John Lind*say, *Judge.*

Action bv Adolph Wetzstein against the. Boston & Montana Consolidated Copper & Silver Mining Company. From a judgment in favor of defendant, plaintiff appeals.

Affirmed.

*2Iessrs. Mcllatton &*Cotter, and *Messrs. Toole &*Bach, for Appellant.

The former action does not constitute any bar to or abatement of this action; until the final determination of the former action, the plaintiff had a right to institute and- maintain this action. (Code of Civil Proe. Sees. 1895, 1893; *Murray*v. Greene, 04 Cal. 369; *Harris*v. Barnhart, 91 Cal. 546, 32 Pac. 589; *Naftzger*v. Gregg, 99 Cal. 83; *Broivn*v. *Campbell,*100 Cal. 636; *lístate of*Blythe, 99 Cal. 412; *Storey*v. *Storey &**452*I sham (Jo.,*100 Cal. 41; *Montana Mining Qo. Ltd.'v. St. Louis M. £ 8. Co.,*58 Pac. 8.70.)

Tlie plaintiff’s position is that lie is a cotenant ivitli the defendant; that the defendant denies his title, and has ousted and excluded and still excludes him from the common property. At common law a tenant in common had'the right to> enter upon the whole and every; part of the property. *(Carpenter*v. *Webster,*21 Cal. 544-546; *Tevis*v. *Hieles,*38 Cal. 234-238; Freeman on Cotenancy, 81.) In all cases a tenant in common can sue his cotenant. (Section 586, Code Civil Procedure of Montana.) Under the Act of February 28, 1899, Laws, of Montana, Sixth Session, page 134, the plaintiff has a right to maintain this action. Under the circumstances alleged in the complaint he is entitled thereunder to the relief prayed.

An action in equity for an accounting is a proper one. (11 Ajm. & Eng. Emcy. Law, p.. 1131, note 2; *Ward*v. *Ward,*29 L. E. A. 449, note; *Gage*v. *Gage,*28 L. K. A. 849; *Fitzgerald*v. *Ciarle,*11 Mont. 100; *McCord*v. *Oaleland Q. M. Co.,*64 Cal. 134; *Clay*v. *Field,*115 U. S. 260; *Steivart*v. *Stewart,*63 N. W. 886; *A. C. M. Co.*v. *13. £ B. Co.,*11 Mont. 519.)

*Messrs. Forbis £ Evans,*for Respondents.

Cited: 1 Etaey. PI. & Pr. pp. 150-152, and cases cited; Van Fleet on Former Adjudication, Secs. 1017, 1086; *Crane*v. *Larson,*15 Pac. 326; *Holloway*v. *Holloway,*103 Mo. 214; *Mantle*v. *Speculator Mining Co.,*11 Pae. 665; 1 Ehcy. PL & Pr. pp. 163, 98 ; *Mullen*v. *Mullock,*22 Kan. 598; *Colt*v. *Partridge,*1 Met. 519; *Damon*v. *Denny,*54 Conn. 2.53; Code of Civil Proc. Sec. 950; *French Bank Case,*53 Cal. 553; *Magau-ran*v. *Tiffany,*62 How. Pr. 251; *Perry*v. *Foster,*62 How. Pr. 228; *Jolly*v. *Bryan,*86 N. O. 451.

MR' JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was commenced in the district court of Silver Bow county, Montana, to secure a decree establishing plaintiffs *453title to an undivided, one-fourth, interest in the Comanche mining claim, to have the defendant declared to hold the same as trustee for the benefit of the plaintiff, to compel the conveyance of such interest to him, to secure the appointment of a receiver to work the property, an injunction to restrain defendant from converting to its own use ores taken from plaintiff’s alleged one-fourth interest in the claim, and for an accounting by the defendant for ores extracted from the claim from the time it came into possession of the same. The complaint sets forth at length the history of the Comanche mining claim, and, among other things, alleges that it was located in 1879 by Turner and Upton; that Largey, Zenor and Bielenberg succeeded to Turner’s interest; that Upton conveyed a one-fourth interest in the claim to Tong, and afterwards a one-fourth interest to H. L. Frank, who conveyed the same to this plaintiff; that, while Upton continued to own a one-fourth interest in the property, Tong, Largey, Zenor and Bielenberg wrongfully and fraudulently, and with intent to acquire for themselves the right to Upton’s undivided one-fourth interest in the claim, made application for patent, and in said application fraudulently omitted and excluded Upton’s name; that they received a patent, organized the Comanche Mining Company, and assumed to convey the entire property to such company, which had actual notice of plaintiff’s alleged claim of interest therein; that this plaintiff in 1894 commenced an action in the district court of Silver Bow county against the Comanche Mining Company, Largey, Zenor, Bielenberg, Warren and Tong, to have them declared trustees of an undivided one-fourth interest in the property for his benefit, and to require a conveyance of such interest to him; that on the date of the commencement of such action plaintiff filed with the county clerk and recorder of Silver Bow county, where the property was located, a notice of *lis pendens;*that such action was tried on its merits, and a decree entered adjudging that this plaintiff had no right, title or interest in the property whatever; that from such decree and an order denying his motion for a new trial he appealed to the supreme court; *454that sueb appeal was still pending undetermined in tbe supreme court at tbe date of tbe commencement of tbis action; that, in addition to tbe notice conveyed by tbe notice of *lis*pendens, tbis defendant bad actual notice of tbe claim of tbis plaintiff, but, notwithstanding sucli notice, in 1896 it assumed to purchase from tbe Comanche Mining Company the entire property, and immediately thereafter went into possession and commenced to extract large quantities of ore from, tbe same. To tbis complaint tbe defendant interposed a demurrer upon tbe following, among other, grounds: (2) That another action is pending between the same parties for *the same*cause; and (3) that the complaint does not state facts sufficient to constitute a cause of action. This' demurrer was by tbe court sustained, and, tbe plaintiff declining to amend, judgment was entered in favor of defendant' for its Costs, from which this appeal is prosecuted.

Section 680 of tbe Cbde of Civil Procedure provides that a demurrer may be interposed to a complaint upon tbe following ground: “(3) That there is 'another action pending between tbe same parties for tbe'same cause.” In order to. invoke successfully tbis ground of demurrer, it must appear from tbe face of tbe complaint (1) that another action is pending, (2) that it is between tbe same parties, and (3) that it is for the same cause.

1. Section 1895 of the Code of Civil Procedure provides that an action is pending from tbe commencement thereof until the final determination on appeal, or until tbe time for appeal has expired, unless the judgment has been sooner satisfied. It appears from tbe complaint that at tbe date of tbe commencement- of tbis action the former action was before the' supreme court undetermined on appeal, and was therefore then pending within tbe meaning of Subdivision 3 of Section 680,1 *supra.*This is tbe view taken of a like provision by the Supreme Court of California in *Fish*v. *Atkinson,*71 Cal. 452, 10 Pac. 374, 12 Pac. 498.

2. Tbe plaintiff in each action is admittedly tbe same. It appears from tbe complaint that tbe 'defendant in tbis action *455is the successor in interest of the defendants in the former action; that it purchased the property pending such litigation, and, in addition to the knowledge brought home to it by the notice of *Us pendens,*it had actual notice of plaintiff’s claim of interest at the date it purchased the property, and this successive interest, or relationship to the same right of property constituted this defendant a privy of the defendants in the former action: The very purpose of *lis pendens*is, and indeed the very purpose which the plaintiff must have had in filing such notice was, to bind any subsequent purchasers, by the decree which he might obtain in the action, to the same extent as though actually parties to the litigation; and the reason of the rule that the term “parties,” as used in Subdivision 3 of Section 680, *supra,*includes privies, then becomes apparent, and this we understand the rule to be. (1 Cyc. 33; 21 Ency. Law (2d Ed.), 602; *Crane*v. *Larsen,*15 Ore. 345, 15 Pac. 326; *Holloway*v. *Holloway,*103 Mo. 274, 15 S. W. 536.) Applying this test, it is obvious that the parties to this and the former action are the same within the meaning of Section 680, above.

3. Was the former action for the same cause as the present one ? That action was brought to have the defendants declared to hold an undivided one-fourth interest in the Comanche claim in trust for the plaintiff, and, primarily, the present action is brought for the same purpose and to secure the same result. The claim made by the plaintiff in each action is the same, based upon the same assertion of title, and none other. As incidents to this primary relief, and dependent absolutely upon this particular claim of title, the plaintiff in this action asks for an injunction, the appointment of a, receiver, and an accounting. The general rule for determining the question now’ under consideration is, if in the former action a judgment had been obtained upon the merits, and that judgment had become final, it could be pleaded in bar of this action. (1 Cyc. 28; *Damon*v. *Denny,*54 Conn. *253, 7*Atl. 409; *Mullen*v. *Mullock,*22 Kan. 598.) Or, stated in other words, could the plaintiff in the former action have obtained all the relief -which he al*456leges be is entitled to in tbe present action ? If so, be will be required to exhaust bis remedy in that action, and Avill not be permitted to harass or annoy tbe defendant by maintaining this one. There is reason for this rule; for, if tbe plaintiff failed in tbe former action and was declared to have no interest whatever in the property, then be could not maintain this action, and tbe decree in tbe former would be an absolute bar to this, for bis claim of right is based upon tbe same alleged title in each instance. If be prevailed in the former action, tbe defendant in this one, having purchased with actual knowledge of bis alleged claim, would be bound by such decree to tbe extent, at least, which it established tbe plaintiff’s interest in tbe property and afforded him ancillary relief by way of injunction or the appointment of a receiver, and therefore, under such circumstances, this action to that extent would be entirely useless; for, if be is entitled to an injunction or tbe appointment of a receiver in this action, be was equally entitled to such relief in bis former suit.

But it is contended that tbe plaintiff is entitled to an accounting by tbe defendant company for ores éxtracted since it came into possession of tbe property, and to that extent, át least, tbe causes of action are not tbe same. This gives rise to tbe inquiry; Does tbe complaint state facts sufficient to constitute a cause of action for an accounting ? It is conceded that tbe defendant is tbe owner of an undivided tbree^fourtbs interest in tbe claim in controversy, and therefore no wrong can be imputed to its possession of the common property. In order to change the' character of such occupation, tbe plaintiff must have been wrongfully denied participation in tbe fruits of tbe mining operations carried on to the extent of bis interest. If be bad received bis alleged share of tbe proceeds no complaint could be made upon this branch of tbe case, or, if be knew or bad tbe means of knowing just what suck share actually amounted to, be would have no cause of action for an accounting; for tbe law does not assume to< do for parties that which they may rightfully do for themselves, and particularly does not encourage needless controversies in tbe courts.

*457The gist of an action for an accounting is tbe inability of tbe plaintiff to procure tbe same bimself, and tbe refusal of tbe defendant to render sucb accounting to him; and tbis suggests, tbe rule, general in its application, tbougb apparently seldom announced, tbat a demand by tbe plaintiff for an accounting and a denial thereof by tbe defendant are necessary prerequisites to be pleaded and proved, in order to maintain an action for an accounting. (1 Ency. Pl. & Pr. 98; *Jolly*v. *Bryan,*86 N. C. 457; *Smith*v. Lawrence, 26 Conn. 468; *Southworth*v. Smith, 27 Conn. 355, 71 Am. Dec. 72; *Kennicott*v. Leavitt, 37 Ill. App. 435.) In tbe absence of an allegation of demand and refusal, we are of tbe opinion tbat tbe complaint does not state facts sufficient to constitute a cause of action for an accounting, and, as tbe plaintiff could bave obtained in tbe former action all other relief which be claims for himself in tbis, we bold tbat at tbe date of tbe commencement of tbis action tbe former action was then pending between tbe same parties for the same cause, and in sustaining tbe demurrer tbe lower court committed no error. Tbe judgment is affirmed.

*Affirmed.*