Bernard v. Parmelee

The court below, upon the application of the defendants, ordered a dismissal of this action upon the ground that the same had not, after its commencement, been prosecuted with reasonable diligence. The appeal is from said judgment of dismissal upon a bill of exceptions. The bill of exceptions contains the affidavits upon Which the defendants presented the motion to dismiss and the counter-affidavits filed by the plaintiff in resistance to the motion.

The action is one to quiet title to certain mining property situated in Placer county. The complaint was filed on the twenty-seventh day of December, 1905, in the superior court of said county, and on the same day a summons was issued by the clerk of said court and delivered to the plaintiff for service. The summons was not served on the defendants, and on the third day of May, 1906—a little over four months after the institution of the suit—counsel for respondents filed a motion and notice thereof to dismiss the action, said motion being noticed for hearing for the twenty-first day of May, 1906, and said notice and motion, together with the affidavit in support thereof, were served on the attorneys for appel

We do not, nor can we conceive any possible reason upon which we could, concede the soundness of the position of counsel for the respondents that the general government has any power to prescribe in any case the rules by which the state courts shall be governed in the disposition of causes coming properly before them. That the jurisdiction of the courts of this state to try or otherwise dispose of cases which, even though they may, like this, originate in the land' department of the United States, is not and cannot be derived from acts of Congress, is a proposition so clear and so elementary that its mere statement is conclusive of its soundness. If the Congress had the power to prescribe the limitation of time within which an action might be brought and prosecuted to judgment in the state courts, it certainly could as reasonably claim equal right to prescribe the rules of pleading and practice by which state courts should be guided in trying and disposing of such an action. It could establish rules of evidence different from our own and, if the case be triable by jury, direct the character of the instructions to be submitted by the court. But these and kindred questions, involving the rights of the states, as contradistinguished from those of the general government, have long since been fought out and definitively set-

But the action here has no connection with or relation to the proceedings of the land office, in so far as the jurisdiction of the superior court is affected or concerned, nor, as we have suggested, can it have. The action is one of which our state courts have jurisdiction under our own laws, and, as is declared in Altoona Q. M. Co. v. Integral Q. M. Co., 114 Cal. 100 , [ 45 Pac. 1047 ], if jurisdiction of such a suit were not conferred by some provision of our own law, it could not be granted to a state court by an act of Congress. In the ease just mentioned—arising under circumstances similar to those here—it is said: “Congress could not impose upon the state courts the duty or the labor of determining for the land office who is entitled to purchase from the United States, and it has not attempted to do so. . . . But the contestant is required to test his right to the possession of the mining ground in the local courts. This he must do—if in a state court—by some proceeding authorized by the laws of the state. If we could suppose that there was no mode provided in the state ■laws for doing this—no action of which the state courts Would have jurisdiction in which this could be done—the act of Congress would not confer the jurisdiction which was lacking. This is not an action brought under section 2326 of the Revised Statutes of the United States, [U. S. Comp. Stats. 1901, p. 1430], to determine which of the parties is best entitled to purchase from the United States, but only an ordinary action to quiet title. The proceedings in the land office of the United States are utterly immaterial here, unless they tend to show title or right of possession in one of the parties.” (See, also, Quigley v. Gillett, 101 Cal. 462 , [ 35 Pac. 1040 ]; and 420 Mining Co. v. Bullion Min. Co., 9 Nev. 240 .)

We are of the opinion, however, that the judgment should be affirmed for other reasons. Subdivision 7 of section 581 of the Code of Civil Procedure provides that no action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and the

The affidavits of the respondents disclose the fact (and it is not denied) that the summons was issued and delivered to the plaintiff on the day upon which the complaint was filed; they show that the respondents were, at the time of the commencement of the action, residents of Last Chance, in Placer county, and were often, subsequently to the institution of the suit, at and near Auburn, the county seat of that county; that no effort was made at any time to serve them with the summons. The affidavit of F. J. Solinsky, one of the attorneys of the plaintiff, avers that "at all of said times the said F. W. Bernard resided, and now resides, in the city of Beverly, State of Massachusetts,” and that "during all of said times, up to about the first day of March, 1906, one Joseph H. Meyers was the agent and representative of the said P. W. Bernard, in the state of California, and as such agent and representative had charge of the operation of the said mining claim and all of the business affairs of said Bernard in the State of California.” The affidavit then proceeds to allege that said Meyers, as agent of plaintiff, conducted the transaction involving the purchase of the property in dispute and also inaugurated the contest, on behalf of plaintiff, against the defendants for said land in the land office and later caused the present action to be brought; that said Meyers is fully familiar with all the facts in connection with this suit, and that plaintiff is not, and, therefore, the latter relied solely upon said Meyers for the facts upon which to prosecute the action; that in said month of March, 1906, said Meyers departed from the state of California for parts unknown to affiant or plaintiff, and that said plaintiff since that time had diligently endeavored to learn the whereabouts of Meyers and to find him and so proceed with the

We do not think the facts set forth in plaintiff’s affidavits are sufficient to excuse the delay for which the action was ordered dismissed. It is undisputed that the real purpose of the suit was to secure a judicial determination of the rights of the parties with reference to the land in controversy in order to accomplish a final adjudication by the United States land officers of the question as to which of the claimants was entitled to purchase the property from the general government. It is an undisputed fact that the reference of the case to a “court of competent jurisdiction” to settle and decide the controversy had the effect of staying all the proceedings before the register and receiver, except the publication of the notice and the making and filing of the affidavit thereof. The affidavits of the defendants state the fact of the pendency of the proceedings before the land department and the fact of their suspension until a “court of competent jurisdiction” —in this instance, a state court—could decide the controversy, and it was competent for the court below to consider those facts, together with the other facts set out in the affidavits, for the purpose of reaching a conclusion as to whether or not there had been such an absence of diligence in prosecuting the case as to warrant it in exercising its discretion favorably to the motion to dismiss.

It also appears from the affidavits that the attorneys for the appellants in this action acted as such for him in the matter involving the land in dispute before the United States land office, and “prepared the adverse claim and affidavits and survey connected therewith and as filed” in said land office, “and upon which this action in this court was commenced and depends.” It is, of course, certain from the undisputed facts that Meyers, the agent of the plaintiff, as well as the attorneys, knew the purpose for which the case had been referred to the superior court, and equally as a matter of course knew that the order of reference tied the hands of the defendants, in the matter of the further prosecution of their claim before the land office, until the decision of the controversy by the superior court. The summons, as we have

Counsel for the appellant, referring to section 581, subdivision 7, of the Code of Civil Procedure, say that “the appellants in this action had one year from the 27th day of December, 1905, within which to have summons issued, under

Appellant cites a number of cases in which the judgment of dismissal based upon want of diligence in prosecuting the same was reversed. We have examined the citations carefully and, as to the facts, find no difficulty in differentiating them from the case at bar. In Ferris v. Wood, 144 Cal. 429 , [ 77 Pac. 1037 ], which was an action upon a judgment, it appeared from the record on the motion that an effort to com

Bach case must, as we have seen from all the authorities, rest upon its own peculiar circumstances, or, as it is expressed in First Nat. Bank v. Nason, 115 Cal. 626 , [ 47 Pac. 595 ], “each particular case presents its own peculiar features, and no ironclad rule can justly be devised applicable alike to all.”

In the case at bar, the appellant presents no facts excusing the delay, which, though embracing only a little over four months, must have, under the peculiar circumstances of the record, resulted in greater hardship to the defendants than might be entailed upon the delay of the ordinary case for a year or more. Prom the facts before us we cannot say that the court abused its discretion.

The judgment is affirmed.

Chipman, P. J., and Burnett, J., concurred.