Pioche daily record. [volume] (Pioche, Nev.) 1872-1876, 1873-04-09
The Great Mining Suit.
TUESDAYS FULL PROCEEDINGS
FORENOON SESSION.

rather readings, OF Judge Hardy, but the
effect had not been to alter his opinion
on the question pending. He read few
things out of 40 or so volumes which
fitted his case, and many things that
didn't. He failed to convict us of erro-
nous opinions in fact, he Stunned the
question. His New York and California
references were inapplicable-especially
the case of the tax sale in California.
In that case the agent got deed for
property which was the principals, and
OF course it was declared void. But in
this case the plaintiff never had right
to our property or title that was worth
cent. The proposition is that legal and
equitable causes of action cannot be
joined. Now, that distinction is clearly
defined and prescribed in and By the
Constitutions of New York, California
and Nevada. In this case we have a
title, which they have got to divest US of,
before they can get along with their case;
but how will they bring about this divest-
ment when they claim in their complaint
that the fee simple is in themselves? 1t
is very different from the reforming OF
deed; in that case the Court will refer
the deed back to the time of execution,
and make it conform to the intentions of
the parties. In the case before us no
conveyance was ever made. He reads
the complaint. Thus we see they set
up full nd complete cause of action in
ejectment. The face of the complaint
shows this-it is ejectment, and nothing
else. They swear they are the owners
in fee; and then they come in with
second cause of action, or aiter-thought,
and try to charge Colonel Light
ner and Mr.. Perley with some
sort of improper conduct. Now,
how shall we treat this mongrel
complaint? If the first cause alleged
and sworn to in their complaint is true,
that the absolute title is in themselves,
how can they get title from us? The
complaint is self-destructive. Why
didn't we demur? Because we could
not-you cannot demur to n part of
complaint. The second cause Of action
proceeds on the hypothesis that We have
no title, the first and second causes being
contradictory of each other. The COM
plant is inconsistent with itself, and is
inharmonious. The first cause is OF the
nature of ejectment, and the second is,
if it is anything, prayer for tempo
rary injunction. Must they not be COM
PEELED to stand on one ground or the
other? Judge Hardy said the complaint
is, under our laws and according to the
general law, single cause of action.
No distinction exists under the Civil
Practice Act of Nevada between legal and
equitable causes of action. II they con-
tend that our title is worthless, why
don't they wait till we assert ii? Then
they can assail us in rebuttal. This is
the only way a regular action at law is
and can be conducted. Breads New,
p. 30.) In this case the plaintiff is ad-
judged to have right to proceed in an
action at law to recover before
jury, but he has not the right
to ask for ejectment ~ in this
action, as he blends his legal and
equitable causes. They must try their
title, and if they lose it and find we have
it, then they may seek relief in equity.
They must show they have not the title,
before they can assail our title; but in
stead of this they assert the fee simple
is in themselves. Breads 10 CAL, p.
272; also "a Cal, p. 194.) These cases
are conclusive that in action of eject
nnept the rini..tiT 900. ~-iy
legal title. If this complaint aims at
anything else than an injunction it is to
compel us as trustees to convey property
to which we hold the legal title. l sup
pose it will not be questioned that
complaint cannot allege what cannot be
sustained at the time of filing it, Now,
in the New York case it was demurred
that several causes of action had been
improperly Joined, but the Court of
Claims did not decide that the complaint
would be good IN setting forth different
causes of action, but decided that the
complaint was single cause of action,
set forth in narrative form. 1t was held
/ to be simply bill in equity. But in the
case in hand we undoubtedly have two
4 causes of action-frst, plea for eject
ment, and then for relief by means of a
temporary injunction. The cases are not
parallel 1t is complaint in ejectment,
with redundant matter added upon
which they may ask for an injunction.
And being of this character, the attempt
to introduce the evidence objected to is
an attempt to do something that was
never heard Of in Court before. The
theory of the whole proceedings here fol-
the past two weeks has been, on the part
of the plaintiffs, that Of a complaint in
eectment. The complaint must be one
thing or the other and if 1t Is In the ma
ture of ejectment, then is the evidence
assailing the validity of our title mad
missible.
Judge CARRIER said that all which had
been said on the opposite side in REGARD
to the distinction betwt en- law and equity
was based on laws and codes which had
long since been abolished, having beer
found insufficient. The old system has
| u. 30, cnnAdv md ms
remedies. But admit their objections t.
be well founded, and they must fail, be
cause they have not been taken at tn
right time and in the right manner. Th'
fact that they were our agents, that on
was our superintendent and the other GU
attorney, whose duty it was to watch
protect and strengthen our titles, !
conclusive that they cannot set up u
/ this Court adverse rights SO acquired
, This is clearly set forth in the complaint
We have perfect complaint in law an
e a perfect complaint in equity. They I'D
} NIT they are both good causes of action
: but claim a missioner. II they hav
: been improperly joined the defens
Q should not have joined issue and sui
i. mitted to the jurisdiction from the bs
ginning. They cannot come in now an
. plead inadmissibility of evidence. BIZ
Y the objection could not have been su'
!, tanned at any stage of the proceeding
. The complaint, under our statutes,
: good. Law aud equity jurisdiction al
= blended in our Courts, and the tw
J causes of action are therefore properl
. joined. Under the code, as revised an
improved, the party can come into Il
same forum with all his causes Of aetio
D Joined, SO if he loses on one branch h
4 property is saved on another. The gre
1" superiority Of the new order Of jurispr'
:, dencs is illustrated in this very cas-
!. y Under the old system, which would ha'
- compelled us to institute separate a
. tions-one in law and the other /