Show L GRAND CENTRAL GENTRAL MAMMOTH CASE GASE J Judge John A. A Marshall Decides Decides De De- in Favor of f Grand kL t I I OUT OF STATE COURTS I on Question Un of Apex Acx I May He lie Carried to nJ Highest t Tnt Tribunals Tri TrI- t of Nation I 0 Tho famous Grand Gran Mam Central 11 I mo moth h case was was again In the tho limelight I yesterday Ester n when Judge John A A. A MarI Marshall Marshall Mar Mar- I shall of or tho ho United States Slates courts renI ren ren- I dered his decision in Iii the ho matters re recently recently recently re- re advanced In the tho Federal courts IJ by the lie counsel of the Grand Central 3 aiming company compan which was waB hotly holly i J cont contested sted I by the legal egal representatives f of oC the tho Mammoth Mining 1 If tl The rho decision finds the issues company in Iii favor faor J 3 I o of tim the Grand Gran J Central Mining i I jand and th the cause will not come como company compan up for I trial before the Iho United States courts i hut hilt if the matter mattel is pushed further i 1 It K will have havo to tp go before tho the Supreme I court of the United States Slates for tor final I t adjudication 1 The decision rendered Monda Monday by 1 JUllO Marshall referred to lo tho the plea 1 and supplemental plea In bar by the counsel for fOl the Grand Central Min Mm- i log ing in lIt company which they held that thata 11 r- r a n decision rendered by hy the State Su Su- Su- Su premo court acted to bar the action i t before the United States Stale Tho Thu arguments arsu ments were vere submitted Jan 11 1907 and ami th the question was then taken uni un un- i der del advisement rul 1 Many ran Yen Ye Years re In iii Courts ki kiI Tho The suit Is familiar to nearly everyone every every- I t ono one In tho mountain Inter-mountain country who ho Is Interested In mining litigation The rho E C o cas-o o was sas begun by ly the Mammoth Mining com company pan several se years ago Ss In iii the state courts and then went to the Supreme court of Utah The Tho acHon action action ac ac- ac- ac tion Hon grew out of a 0 controversy on the question of apex alex ex and now appears to t. t have been finally settled insofar as the courts within the state are aro concern concerned ell z ln In the of or tho tile ar arguments c before the United States court the Mammoth Mining company compan the plaintiff plain plain- g tiff lift were represented b by C C. S S. S Zane J si R. R N N. N Baskin Daskin John M. M Zane and H. H I I F. F Edwards The counsel for the Grand Grond Central Mining company compan were f W. W II 11 DIckson H H. P P. Henderson on and 7 C C. C. C Dey Der I Tc Text t of or Opinion f Mammoth Mining 1 company companS vs S TheL The I L L Grand Central Mining com company pan of PS- PS r. r i Colorado tho th the Grand Central company compan IJ of ot Utah Marshall j J. J This case has been before beCore the courts on several eral occasions and the lie I issues ues I o- o r presented have ha boon been full fully stated stale In w W opinions heretofore filed in in the tho cause r t. t so o it will be unnecessary ary to o repeat J J them It Jt Is now presented on a trial r of or Jr the lie Issues by the plea of ot the Gl Grand ln Central Mining l company compan of or Colorado V f ot of It th ilia bar har resulting from a n former adjudication Uon between Its predecessor lJ st st. Grand Control ClU t Min Min- l. l j mp n Utah Jho comah comi com com- i ah liere le which has lias been heard aw- aw in a state dl district court and und n a supplemental sup sup- r nt l plea plen averring the Inn nn e of or the LI decree elee of or the tho state court and mul this the supreme court of or the stale K J to lo their pleas having been Ileen ivied med b by the complainant The rho actual W if defense defenso to the was however presented pre pro I by hy an to lo the plaint plaintiffs plaintiff's plain plaun- t tiffs tiff's bill hili In which it was asserted that when the complainant In the course Y j of oC the litigation atlon In the state stat district S. S court sought to amend its Ils pleadings i 24 so as to lo present the tho title here alleged E r n as ns a basis for recovery the Grand z Z of or Utah the theW defendant t to that that litigation took look the position that such Juch an amendment would present I an entirely new and andI of oC action induced the I 1 distinct cause caus e 1 r court to den deny leave to amend on that thai ground and is thereby estopped to lo assert the bar of or the decree which lopped estopped binds its y y in It II IS H unnecessary to express an any opinion on the evidence tending to support the tho plaintiffs plaintiff's that the Grand Central Mining l company before before be be- fore the state trial court took look the position that proposed amended c. SJ kd n. n new and distinct n u Io cause of action with respect to the vm very ore bodies before in controversy and which would not be he affected by bylie bythe the lie on the tite pleadings s as tile the they stood It would be 10 a matter of ot no small maJl to arrive at a conclusion con con- elusion as to tu this In m my opinion in inthe the tile determination of or the tho appeal r the state stale supreme court coutt relieves tills this l i case of that lint In that court j it H is not claimed that such a position th that t was taken and antI it is apparent 1 t If taken it Jl was not successful In Inthe the tho opinion of oC that lint court it Is as asserted as- as J ll that so far tar as ast 1 emphatically the same sarno ore bodies are concerned t t that the thc proposed counterclaim did 1 4 not present a new cause of oC action that hInt the title asserted in the counterclaim counter counter- i- i c claim lm was barred barre in the decree an ani and I i that the trial court should have per- per f tho the amendment If It there thero was justify a to lo evidence nn all any t 7 t for fUI the lie complainant on the f. f finding issues presented by It Il that lint however 1 offered to toI as ns the counterclaim was conform to 0 the proof and it did dill nolI not nol I leave to of ot the tho refusal conform I. I F PO so I amend wa was right and it would have havet to have granted such been n an nn error t leave So that whatever el might have havet Grand Central Con Con- 4 lH been en the conduct of or the tho t of Utah Ulah on un thet the 4 Mining company compan I t trial In the lie lower court tho the decision not In- In 2 of the supreme court was by It it The complainant i did d the tho view of oC the law lawI in not acquiesce L have been successfully adI adf ad- ad I ull alleged gell to lu the by Its IW opponent before I appealed to the suI SU- SU It 1 trial court f alleging as error the aco ac- ac court I claimed to have o of the court now and unconscionably procured i. i been of or oft in a decision t 1 that appeal anneal resulted fuestion and unaffected by nil an any t the question court or ort the lower of action l' l prior inconsistent conduct of or tho the Grand claimed Mining 1 companY compan Glnn t It be contended that lint the they then can from Crom avail avail- Slopped estopped defendants are y it decree becaUse or of that log Ing demonstrably dill did which t i t 1 UL hot 1101 t affect f t tJ the c fi final l al resu result It If the lie amend trial court ha hind had refused leave to that actuated in the tho the reasons fur for court In the he order appellate cornI corn com basis for the would be no there contention but the appeal I to another court the case order In question f an and so 0 far as the fieri rue fhe still In tl it was f I supreme Is concerned court In the exercise or of a juri jur- jur invoked Invoke by the tho complainant i decided the matter against It that decision stated to before nn and ns condUCt of the Grand Grandt rio no companY contributed t Central Mining result then the rights of 1 As a final not affected In I. I were complainant the theol respect 1 bY the tho erroneous 1 I I o t I as to tho the bar of the decree which prevailed in tho lie lower court In arriving at nt this conclusion recourse has been ha had to the opinion of the lie Supreme court and this lila brings up ill one of tho the principal questions argued in this case calie The position of the complainant Is that the lie opinion is no part of ot the record that an ac action ac- ac lion tion iou o of the Supreme court Is shown and only shown by its Ils o othe ot of the decree below That tho the anco left the decree of the lower cour courIn court courtIn In Iii the same sumo position as if no appeal had ever been taken and if Jf when the decree decIco was eller entered d It did Jill no not avail all as an estoppel It had no greater greate effect when This argument seems to mo me to I Ignore nore the distinction between the effect of a n judgment or decree considered of itself and its Us effect In the light of somo some at affirmative defense to lu It consistent with the jurisdiction of at the court entering the Judgment and the regularity of or the proceedings such as payment statute of limitation or estoppel by conduct Un Undoubtedly tho the of or tho he derce tie de- cree b by the he Supreme court gave It no attribute which U it did not nol havo o before before be be- fore ore considered simply as a decree but It Is In no way wanting wanting- of ot the time nt- nt of oC finality The Tho complainant Is Instating on an arv J matter ns as estoppel by conduct which urged against I tho the of record would leave leavo the m matter at large o To Tomake Tomako make mako out that estoppel it Is to o prove that the estoppel defender took look u IL position in tho lie ca case caso o resulting In n the judgment inconsistent with wilh the position tal taken cn In the lie subsequent suit on the tho same cause of action In one and the same suit sulL it is true a n partIs party part Is It held to lo consistent action but it Is it the lie principle too loa far to re require re- re quire quilo consistence In different suits It Itma ma may be that lint an erroneous condition conduced to lo an unfortunate result If Ifa Ifa Ifa a suit non was hind hall would It be he contended that the plaintiff could not In another action on the tho same cause avoid the error which had hall before de dc defeated defeated de- de him him With the exception of or cases Involving an election and which hitch are not pertinent here mere Inconsistency of position in different actions is no ground of or estoppel The fhe party part a asserting lie Iho estoppel successfully successfully success success- fully Cully must not nol have haY acted upon faith of the position assume assumed or 01 have been heen subjected to some action finally affecting his rights so as to make the tile change chango o of position Inequitable as to him The feature of oC is emphasized in many ninny of or the lie cases I Davis Dals vs YS Wakely 16 U. U S S. 0 Davis DaYis vs 8 Cornwall Fed Fell Sullivan Sullivans s vs Colb Colby 71 Fed Fell l s vs Frost Ills But where whore submission Is enforced It should be he equivalent alent to Here the lie complaint neither acquiesced In the proposition of law claimed to have been advanced by the Grand Central Mining company of Utah Inconsistent with the present position of the defendant Interposing the plea lilea nor was it finally subjected to lo an any action ac ac- ac- ac tion iou on un that thai view of tho lie law I think It proper to have recourse e to lo the opinIon opinion opinion ion of oC the Supreme court to determine this The complainant alleges an estoppel estoppel estoppel es es- es- es toppel asserted by complainant Is of toppel in pals pal against an nn estoppel b by record ecord and the lie conduct the basis of asserted b by complainant Is of record Asserting that estoppel it il IN is for It to prove pro every element clement of or It If IC one element is the lie action of oC a n court and that action ma may have proceeded on oil one of two or more grounds one an and only one of which supports the estoppel the lie must prove provo on which ground this action actually rested Until that be done the estoppel estop estop- pel Iel Is not made out The rime opinion of the trial court Is relied re reo re- re lied on showing the reasons Influencing ing Its action I remember of oC no other definite evidence showing that the tue re refusal refusal refusal re- re of leave to flue file the counter claim was because of or a misconception as to the tho effect of the decree as a ahaI bar and yet et it is a admitted b by plaintiff that no other objections were argued 1 If that opinion is proper to be considered surely sureh tho the opinion of or the lie Supreme court Is entitled to equal especially especially es es- es- es in view of or tho the statute requirIng log Ing ng the he decisions of that court to be beIn bein bein in writing Utah Ulah Rev He Stat G. G There Is Js express authority supportIng support support- log Ins the view lew here expressed Hood HoodS s. vs Hood 1010 Mass l Le Grande vs S 65 Va S S. E E. R R. Strong vs Grant 2 Mache D D. C C. Of course COUriC it is not riot meant thiat the opinion of the court can be bo considered for or the purpose of qualifying or 01 tie de- from the decree but only In Ina ina a 0 cus cuse e where extrinsic evidence is ad admissible admissible ad- ad to lo tho the actual malted matted mat mal ted td decided Hussel HusselS Hussel'S vs S Place 9 91 91 t U U. S. S COG GOG COGA A SOS oIt It H o follows that the pleas of the Grand Central Mining l company of oC Colorado he be found In Its favor lavor Dated at Salt Sail City Cily Utah Feb t 1 1917 1907 I Filed Feb 4 4 1907 B JEROLD R. R Clerk l s i i L JL 8 |