Maxwell Land Grant & Railway Co. v. Thompson

By Court, Johnson, J.: In my opinion, the following are the questions here presented on argument for determination: 1. Is tbe bill in this cause purely a bill of review, or is it an original bill in tbe nature of a bill of review and supplement ? [Tbe amended bill begins on page 139 and ends on page 155 of tbe transcript.] After examining tbe allegations of tbe bill, and tbe relief prayed for based tliereou, it is my opinion that said bill is not purely a bill of review, but an original bill in tbe nature of a bill of review and supplement. 2. Were there parties complainant in this bill who should not appear as such, and were parties omitted as defendants who should have been made such ? It is my opinion that, were tbe bill purely a bill of review, tbe position of the appellants on this point would be sound; but tbe bill being such as I have defined it in my first proposition, it is my opinion that none should have been made parties but those having an actual interest in tbe suit, whether as complainants or defendants; that Maxwell and wife, and the Maxwell Land Grant etc. Company, show actual interest in the subject-matter of the bill, and were therefore properly parties complainant. It also appearing that Sherick and wife, and Hicklin and wife; had conveyed their interests in the subject-matter to Maxwell, it could not be affected by these proceedings, and therefore it is my opinion that Sherick and wife and Hicklin and wife were properly omitted as defendants. It also appears from the record that 'the appellants did not suggest to the court below, in their answer or otherwise, that there should have been other parties; and it is only here and on argument that appellants have said anything about Sherick and wife and Hicklin and wife in connection with these proceedings. The relief sought by the complainants in this cause seems to me to be ultimately the perfecting of a compromise between Maxwell and the heirs of Charles Bent, deceased, touching the conveyance of their interests in the lands described to Maxwell, the imperfection having been only as to the manner of conveying the interest of the minor children of Alfred Bent, who had deceased during the pend-ency of the original suit; and also to terminate the trust on bebalf of tbe heirs of Charles Bent, deceased, in the subject-matter. It is not shown here that, in granting the relief sought by the appellees, and making the incidental review of the original cause, the court below prejudiced or in any wise disturbed the interests of any of the parties to the original cause. On the contrary, it appears from bill and exhibits, answer and proofs, that the appellees ought, in equity, to have the relief sought. In relation to the amendments allowed by the court below, it appearing here that they were such as, by the statutes of this territory, and the rules of practice of our courts, are entirely discretionary with the court trying the cause, they are not reviewable here. Hence, it is my opinion that the decree of the ' court below should be affirmed.