In the verified complaint filed in this action the plaintiff alleges that he is the owner and entitled to the possession of certain personal property of the value of six thousand two hundred dollars, which the defendants have unlawfully taken from him and converted to their own use. The defendants demurred; their demurrer was overruled; and, all but the bank failing to answer, their default was entered. Subsequently, upon their motion, the default was set aside by the district court, but upon appeal to this court (20 Nev. 426), the order was reversed. Upon the return of the case to the district court for further proceedings upon the default, on motion of the defendants' attorney, G. W. Baker, acting as amicus curiœ, the action was dismissed, upon the ground that it was collusive and fictitious.
It is agreed that the property originally belonged to the Utah, Nevada California Stage Company. One Townshend was in possession of it under a contract of purchase, the company retaining title until it was paid for. The defendants were sureties upon a certain bond for Townshend. and he was also indebted to them. Becoming involved, he transferred the property to the Eureka Bank, to which he was also indebted. The defendants paid the bank the amount due it, and took possession of the property, under an agreement with Townshend that when they were indemnified upon the bond, and repaid the money advanced upon the property and the amount then owing them, it was to revert to him.
The defendants' evidence upon the motion tends further to prove that the stage company, demanding payment of the balance due it, was also paid by the defendants, but the legal title to the property was taken in the name of the plaintiff, under an agreement that he was to hold it in trust for them; that it was further agreed that the plaintiff should bring this action, obtain judgment against the defendants, and sell the property out in *Page 142 their interest. This, of course, vested the legal title in him, but as a trustee for the defendants, other than the bank. On the other hand, the plaintiff denies this, and upon the hearing of the motion testified that he bought the property for his own purposes, paid for it with his notes, and that there was no agreement or understanding that he should hold it in trust, or in any manner, for the defendants.
Under these circumstances, I shall not investigate the evidence to determine whether the plaintiff's or the defendants' contention is the better supported by it. In my judgment the principles asserted inLord v. Veazie, 8 How. 251, and similar cases concerning fictitious actions, have no application here.
Taking the broadest and most charitable view of the defendants' case as presented upon the motion, it appeared that the plaintiff alleged by his verified complaint that he was the owner and entitled to the possession of the property; the defendants admit that he holds the legal title, but claim that it is only in trust for them, and consequently that he is not, as against them, entitled to its possession, nor to recover its value. The burden of showing this is, of course, upon them.
This is the ordinary situation in a contested lawsuit: The plaintiff asserts a right which the defendant denies. Under such circumstances, it has heretofore been supposed that the parties are entitled to a regular trial, either with or without a jury, as they may elect, to determine whether this right exists or not. This is perhaps the first time where, in advance of the trial, against the protests of one of the parties, the case has been taken up, the evidence heard and the merits of the action decided upon a simple motion, decided, too, against a plaintiff whose evidence made at least a prima facie case, such a case as would have prevented a non-suit upon a trial. Unquestionably, before it could be determined that the action was collusive, it was necessary to decide the very point in dispute, between the parties; that is, that the plaintiff was holding the title to the property in trust for the defendants. If he was not, if, as he alleged and testified, it was absolutely his, and they were wrongfully detaining it from him, then there was no collusion in commencing the action, nor in maintaining it. In determing this point against him, the court decided in the defendants' favor the only defense they could possibly have made, had they been allowed to answer. *Page 143
Usually, after a claim legal upon its face is sufficiently stated in a complaint, and the defendant has lost the right to make any defense, judgment goes against him as a matter of course. But here, after this right had been lost, the defendants were allowed upon a mere motion to make their whole defense, and in a much more expeditious manner than they could had they been permitted to answer. I say the defendants were allowed, because the proposition that Mr. Baker, who had been their attorney through all these years of litigation, made this motion, not in their interest, but as an amicus curiœ — a friend of the court — is too transparent for sober consideration.
2. If the transaction was just what the defendants claim it to have been; if the plaintiff took the title to the property in trust for the defendants, and commenced the action in their interest, it also appears clearly enough that this was done for the purpose of obtaining some unfair advantage of Townshend or his creditors. It is hard to determine just what their ideas were, owing probably, to the fact that they themselves did not have a clear perception of them, but it is safe to say that men do not resort to such crooked methods for honest purposes. The bill of sale vesting the legal title to the property in the plaintiff, was, in my judgment, under the circumstances, equivalent to the deed in Peterson v. Brown,17 Nev. 175, and brings the case directly within the principles there laid down. In the attempt to overreach some one else, through the treachery of their confederate, they have been caught in their own trap, and neither law nor justice calls upon the courts to interfere in their behalf. Why this should be the rule has been so clearly and fully stated in the last-mentioned case, that I refrain from saying more concerning it.
A fictitious case is one where, without there being any real litigation between the parties, a pretended case is presented in which it is sought to obtain an authoritative decision of some point of law that will, as a precedent, determine the rights of others, who may have a real controversy with the parties to this collusive proceeding. This constitutes a fraud upon the third persons as well as upon the court, because it is highly probable that only one side will be properly presented or argued, and consequently that a biased decision will be rendered that will affect their rights, without their being heard. This is not that kind of a case. There is no question of law to *Page 144 be decided here, nor, whatever may have been the purpose in the beginning, will the result affect any third person. This is a case of attempted fraud, where the parties to the attempt, after going a certain length, and after, perhaps, reaping all the benefits they expected from their acts, have fallen out, the same as they did in Peterson v.Brown, and now the defendants are trying to relieve themselves from a position which they have voluntarily assumed, by showing that the bill of sale, was not made, and the action based thereon was not brought, bonafide, but for the purpose of deceiving and overreaching others. To permit them to do this is to allow them to plead their own fraud in avoidance of the consequences of their acts.
Of course, the plaintiff did not demand a jury trial upon the hearing of the motion; he would not have been entitled to it, if he had; for juries are not called to decide motions. Upon this point the error of the court consists in hearing and deciding, upon a mere motion, the entire merits of the action, without a trial of any kind, either with or without a jury. I think the judgment should be reversed.