Decided 7 August, 1899.
On Petition for Rehearing.
[68 Pac. 79.]
Mr. Justice Beandelivered the opinion.
3. It is claimed that the opinion filed proceeds upon the erroneous theory that the findings of fact made in the equity suit had not been filed in the action. Upon that matter counsel is mistaken, for, although perhaps not clearly appearing in the opinion, it was assumed that the findings had been so filed, and that the judgment was entered thereon. It was held, however, that, because the cross bill had been dismissed for want of jurisdiction, such findings could not legally become the basis of judgment . It is also claimed that we erred in not holding that the stipulation that the pretended suit in equity should proceed to trial, and that the findings of fact should be filed in the law action, and judgment entered accordingly, was an agreement of the parties as to the mode of trial of the action, and that the appellant is estopped from questioning the regularity or validity of such judgment. But we think the stipulation cannot fairly be given that effect. It was entered into by the parties upon the apparent theory that the cross bill stated facts sufficient to give a court of equity jurisdiction to determine the matters in controversy, and that the decree therein would result in *141settling the title. On this basis it was agreed that, upon such decree and the findings, judgment should be entered in the law action, but not in case the cross bill should be dismissed for want of jurisdiction. If the equity court had proceeded to try out the issues presented by the pleadings in the suit, and rendered a decree upon the merits, the parties would, no doubt, have been estopped to question its jurisdiction, or right to do so: Yates v. Russell, 17 Johns. 461; Wear v. Ragan, 30 Miss. 83; Sawyer v. McAdie, 70 Mich. 386 (38 N. W. 292); Townsend v. Moore, 13 Tex. 36. But it properly refused to be bound by the stipulation, and sua sponte toot notice of its want of jurisdiction, and dismissed the suit; thus leaving the law action to proceed as if the cross bill had never been filed. The petition for rehearing is denied.
4. The remaining question is one of costs. The proceedings on the equity side of the court, and the law action, had in purpose the accomplishment of but one object, and that was the trial of the title to the land in controversy. The result of the litigation in the court below was a judgment in favor of Small. Having appealed therefrom, and obtaining a reversal of such judgment, he is, in our opinion, entitled to costs in this court, notwithstanding the fact that the decree dismissing his cross bill was affirmed.
Rehearing Denied.