Miller v. Kettenbach

AILSHIE, J.,

Dissenting. — I do not think there is any good reason, either under the statute or the rules of practice and procedure, why the plaintiff cannot maintain this action, and I am therefore constrained to dissent from the views of the majority on this question.

In the first place, the plaintiff has no plain, speedy or adequate remedy ,at law, and if he is entitled to any relief whatever, it must be by reason of the application of the rules of equity to the particular facts of the ease. He contends that the. injury alleged has accrued by reason of the defendants conspiring and confederating together to defraud the estate represented by the plaintiff out of its share of the property owned by Colby, Coryell and Howe Lumber Co. The only method by which the plaintiff could secure any relief in this case in a court of law is by reason of the provisions of our constitution and' statute abolishing all distinctions between actions at law and suits in equity. This change, however, does not abrogate the application of the principles of equity to the facts of any given case. The equitable prin*265ciple is still as applicable as if it were to be applied in a court of purely chancery jurisdiction.

As I understand the facts of this case 'as pleaded by the plaintiff and disclosed by the record, the cases of Ada County v. Bullen Bridge Co. and Ada County v. Gess, and the other cases cited from this court, are wholly inapplicable. In Ada County v. Bullen Bridge Co., relief in equity was denied on the ground that the plaintiff had a plain, speedy and adequate remedy at law, either by affirmative action or as a defense to an action on the pretended obligation. Ada County v. Gess, and the other cases cited from this court, turned upon the same rule and principle. It will, at once be seen that that principle is not applicable here. There is no known action at law whereby the plaintiff could obtain the relief sought by this present action. His cause of action appeals purely and solely to the equitable jurisdiction of the court. It is true that equitable defenses may be pleaded to actions at law, but it is not every case'where an equitable defense can be pleaded that a failure to plead it is a bar to recovery in an independent suit in equity. The very facts of this case illustrate the unwisdom of attempting to apply the rule which seems to be announced by the court in this case. Here the fraudulent transactions alleged and from which the plaintiff seeks relief were consummated on the 10th day of March, 1909. On the other hand, these notes had been presented to the administrator on November 16, 1907. They had been allowed by the administrator, and subsequently on the application of certain of the heirs the allowance was vacated and set aside. As early as March 27, 1908, the heirs filed exceptions to the account of the administrator, which account included these specific notes, and the matter was continuously litigated in the probate court and the district court, and in this court until the 9th day of April, 1909, on which latter date this court affirmed the judgment of the district court, and held that the claims were still pending in the probate court for a hearing on the objections made by the heirs. According to the pleadings in the present case, the cause of action set forth had not accrued up to the date of appeal to *266this court prosecuted by the bank involving the allowance of this identical claim.

As no other question is considered in the majority opinion, I have not examined the record for the purpose of ascertaining whether the judgment should be affirmed or reversed on 'any of the other questions presented by the appellant. It is unnecessary and useless for me to enter into any consideration of any further questions, for the reason that the court has disposed of the case on the specific ground that the plaintiff cannot maintain this action.