Messrs. Hugh T. Taggart and William C. Prentiss for appellant.
Mr. C. F. Ainsworth for appellee.
Mr. Justice Brewer delivered the opinion of the court:
During the October term, 1905, and on May 14, 1906 ( 202 U.S. 270 , 50 L. ed. 1023, 26 Sup. Ct. Rep. 615), the decree of the supreme court of the territory of Arizona in this case was affirmed. On May 26 (the last day [205 U.S. 279, 280] of the term) an order was entered which in effect continued the jurisdiction of this court to the present term, giving opportunity to appellant to present a petition for rehearing during the vacation. That petition was presented, and, in the early part of this term, after full consideration, was denied. Subsequently, lest in the confused state of the record it might be supposed by either of the parties that the facts had been misapprehended, we, on January 7, 1907, entered an order withdrawing the memorandum denying the petition for rehearing, and granting leave to counsel on both sides to file such additional briefs as they desired. In pursuance of this leave briefs on both sides have been filed, and we have again examined the record.
This consists of the pleadings, the decree in favor of the defendant, a bill of exceptions divided into two parts,-one being a statement of exceptions, and the other a narrative of the 'circumstances and evidence,'- the decree and opinion of the supreme court, and a statement of facts prepared for the review by this court. The opinion was filed March 26, 1904, and the statement of facts allowed February 21, 1905, nearly a year after the decision. In addition there appears a motion made in the supreme court by the appellee to strike from the files the abstract of record for several reasons, one of which was that it did not contain the findings of fact and the conclusions of law of the district court. This is followed by the suggestion of a diminution of the record in what purports to be these findings and conclusions. It does not appear that any action was taken by the supreme court upon this motion, or any leave given to amend the record by the addition of the findings and conclusions.
We copy in full the statement of facts prepared and allowed by the supreme court:
Appellant invokes the doctrine laid down in Herrick v. Boquillas Land & Cattle Co. 200 U.S. 96, 98 , 50 S. L. ed. 388, 389, 26 Sup. Ct. Rep. 192; Harrison v. Perea, 168 U.S. 311, 323 , 42 S. L. ed. 478, 482, 18 Sup. Ct. Rep. 129, and cases cited in the opinion, to the effect that our jurisdiction on an appeal from the supreme court of a territory, 'apart from exceptions duly taken to rulings on the admission or rejection of evidence, is limited to determining whether the findings of facts support the judgment.' Of course, if there are no findings or statement of facts and no exceptions in respect to the introduction or rejection of testimony, the decree will be affirmed, if responsive to the allegations of the pleadings.
The statement of facts prepared by the supreme court, standing by itself, is incomplete, but it is helped by a reference to the bill of exceptions in the trial court, which is adopted [205 U.S. 279, 283] and made part of the statement. True, much of the matter in this bill is a mere recital of testimony, but we find in it copies of certain orders and decrees. Putting all together, we are enabled to see clearly the scope of the inquiry. It appears that prior to this litigation two suits were brought in the trial court, one numbered 1728 and the other 1996. The appellant was defendant in the latter. In the first an order was made December 6, 1893, appointing James McMillan receiver of the property now in question. The complaint in suit No. 1996, alleging that the court had already appointed a receiver in the prior case, prayed the appointment of a receiver or an enlargement of the powers of the one then acting, and that he take possession of the property and sell the same to pay the debts. No order appears of record in terms either consolidating the two cases or extending the receivership in case No. 1728 to case No. 1996. A decree was entered in suit No. 1996, of date November 20, 1894, which, after finding the amounts due certain creditors, adjudged and decreed 'that James McMillan, the receiver heretofore appointed by this court, and now in possession of said premises, under the orders of this court, proceed to advertise and sell said property and distribute the proceeds as directed in the decree.' On January 3, 1895, a report, bearing a double heading, to wit the titles and headings of both suits Nos. 1728 and 1996, and purporting to be of a sale of the property by James McMillan, receiver, under the order and decree in suit No. 1996, was filed in the court, and on January 10, 1895, an order bearing the same double heading of the two suits was entered, confirming that sale. Subsequently a deed of the property to the purchaser was executed, purporting to be from the receiver duly appointed in the two equity suits, with titles and numbers as above.
The decree in suit No. 1996 was appealed to the territorial and United States Supreme Courts, and affirmed by each of them. The briefs of appellant in the territorial supreme court show that the question of the jurisdiction of a court, in [205 U.S. 279, 284] a particular case, over property in its actual possession, was not presented. In the brief of appellant filed in this case this statement appears:
It is now contended that, inasmuch as the question is one of jurisdiction, neither the omission to call attention to the matter in the prior litigation nor the misrecital of fact operates to render the decree in that case res judicata upon the question, but leaves the matter open for present inquiry. Counsel are mistaken. In that litigation the present appellant was the defendant. The property was in the possession of the court, even if held under a prior receivership. The decree directed its sale. It was sold. The sale was confirmed, the deed made, and the property delivered to the purchaser. The appellant at least cannot now question the jurisdiction of the court in that suit, or the title which it conveyed to the purchaser at the sale. A failure to make a defense by a party who is in court is, generally speaking, equivalent to making a defense and having it overruled.
Further, in the opinion heretofore filed, after referring to the declaration of the supreme court of the territory that the trial 'court, by its action, ratified the acts of the receiver in the second suit, and thereby, in effect, extended his power and authority as such receiver to such second suit,' we said (p. 274, L. ed. p. 1025, Sup. Ct. Rep. p. 616):
Nothing further need be added to show that the case was rightly decided. The petition for a rehearing is denied.
Mr. Justice Moody took no part in the decision of this case.