Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1889-03-04

ana eAnlDltS taken together tllaL y. |
Rencher, Elisha Whittlesey, Ferdinand
W. Risque, Andrew S. O'Bannon, Charles
w. Sherman and W. NJ. Miller filed their
petition for the approval OF the grant by
the surveyor general, and that they were
found to be the owners of it by him. That |
afterward the New Mexico Mining COM
pany in the year 1865 filed an amended
petition setting forth that by virtue OF an
act of the legislative assembly of New |
Mexico, approved February /, 1858, the
original petitioners for approval had been
made and constituted corporation and
body polite, and prayed that the patent
issue to the company, which was accord
ingly done. That the New Mexico Min
ing company has been in the exclusive
possession of the mine and property from
the date of its incorporation in 1858 is
certain from all that appears in the rec
ord. This bill was dismissed for want of
equity, but the ground stated by the court
below was confined to the plea of res
adjudicata and proofs in support thereof.
These compliments, or some OF them,
representing the title derived through Ig-
nacio Cano, deceased, in the year 1865,
filed bill in the district court Of Santa
Fe county based on the same legal title
and substantially the same facts as this,
in which they sought to have their title as
heirs OF Cano established and the mine
and grant partitioned, one-half to the
representatives of Cano and one half to
the representatives of Ortiz. The bill was
under oath and called for an answer to its
allegations uhder oatn. Inc ahs"el WIS
under oath ana contained SUBSTANTIALLY,
down to that gate, the iacts stated IN the
answer hled mere, as 70 tiie history o.
the grant, the sale by Cano 70 ortlz, ana
the title acquired Dy the new Mexico
company, ana the olier iacts VIAL 10 t.e
clam made by the Dill. Inc answer IN
that SUIT was responsive 70 the allegations
contained III 'ne Dl'l' ing Gauss VAS re-
lerfed 10 niastef W iaAe PROOF. wv
deposll!ons were taAeti y! tne ueieiluahts,
sustaining 'ne .itle VI ing ueienuan's, vi
teholng 70 40 %, py proving ueey lion'
Caho 70 Ortiz as claliileu. NO 'etIioa'.oii
was hied oy coulpiaihants. AHef the
time az expired 10 nle reply anu take
PROOF before tne master, oeienuah1s
moved 70 DISMISS us, the cause Tor want Oh
prosecutor; Ing oiaer oi sne cour' ~ as
iollo"s: IN Illls aay teo: ~, 1000
came inc said parties ny thtir solic,!ols
ana the salo oeienaants py tnelr solitlt'
or ana move the court 10 DISMISS tnls
cause ior "ant Oh prosecutlon' anu tlie
same having peen argued py couhsel up
on DOM sides, ana the court having oeeh
1uily ADVISED IN tlle premises, con
sldered that the same DC ana Is hereDy
sustained. II Is therefore CONSIDERED ny
the court, tnat tne salu aelehuants recoV-
er tnelr costs Oh inc saio coinpiainah's IN
TINS pehail e4pehaeu, 10 pe taAed' Anu
that execution issue tneieiol.
On TINS Propositlon II ID contenoed on
pehali OF plalhtlls III error that the recil.
ais IN the reGolu SNOW aliift aao 'nAt
the dlsmlssal OF tne Dill IN 1905 was not
upon the merits OF the controversy out
SIMPLY because c0mplainahts had nor
heeh olligent IN Jug prosecution VI tne
SUIT ana that IN such case the luuemen!
IS hot oar. AZ IL conceo ; t'aI :lie sun
Is between Tue saine parties or .leir PRIV,
les, upon the same state VI lac's, iounueo
upon the same original fleht, ana tnal
II the luugment hereihoeiore reciteo can
~ conslrueu W nave oeeh upoii ''!G mgr
It's OF the controversy, ralseu Dy the Oh
ana answer! IL VIII oea oar W tiie preseh
actlon. IL Is true tnat only maj luus
menus upon tne merits between the sailt
parties or their prlvies upon tne SAINT
subject matter can 10 treated az oar
Inc courts speak through tnelr lecoiu'
only, ana "neh 'liese reGorus gre in
sPecteu ny 0onel oour's, we. WIZ slN'
them sucH ehect as tie lules Oh law up
pllcaele 70 their construction WIN alio~;
Deienoants IN error lnslst lhat Int
cause had progressed TO answer ana oep-
osltions anu teiefenoe W niastel u
report ule ,ileri's VI 'ile o,'use as sllo y,
. oy the evidence anu sl'at therefore ll'
court must nave iookeu lli'o tne "hoit
case mace az tnat stage OF tne sun ahe
entered the order OF dismissal not strict
ly because tue SUIT had not oeeh pros
ecuted, but because the Issue presented
was iouhd IN iaVor OF inc oeienuants
ana tlat "hetneI TINS WAS 30 OF NOT, soil
cltors Tor complaihahts were present, ane
that the plea OF res ad)udicata not only
embraces an matteis actually iltigatea
put aii matterS tnat nilsI! or couio nave
, been lltlgated by the pariies az the Tune
Wmle the court refused 70 enlarge tls
time lor taxing lurtnel proofs, complain
ants couid nave had the cause set oo~i
for final hearing on the phi, answer anf
. proofs taken, ana not having Done 80
{ and no saving IN favor OF q new pill o
, without pre]udice 10 iresh actlon,
!, words OF any kind appearing 70 proven
|, the dismissal from becoming aosolute ant
, conclusive upon tne mests, tno merit
. are presumed to nave been passed upoi
, and the rights OF the parties concluded
q thereby. upon looking upon the recor'
presented as former adjudication w
o think 1t proper to conclude That the court
i'll passing upon the motion TO dismiss