
    [No. 3,073.]
    HUGH McNEADY v. HENRY C. HYDE and SAMUEL ADAMS.
    Complaint in Ejectment and fob Belief in Equity.—If a complaint states a cause of action in ejectment, and as ground for relief in equity, contains a separate statement of facts upon which an injunction is asked, restraining the defendants from working or selling the property, the action should not be dismissed, because the allegations for relief in equity show that the Court has no jurisdiction to grant such relief.
    
      Idem.—The fact that the Court has no jurisdiction to grant the equitable relief, would be a reason for denying it on the trial, but the plaintiff might still recover in ejectment, on evidence having no relation to the facts averred for relief in equity.
    Appeal from the District Court of the Sixteenth Judieial District, County of Kern.
    The action was brought to recover the possession of certain mining claims, and also to enjoin the working or sale of the property. As special ground for the equitable interposition of the Court, the complaint, after the usual averments of a complaint in ejectment, alleges, among other things, that the plaintiff had sold the property to one Dalton for $73,000, under an agreement that the latter should take possession and work the mine, and apply three fourths of the net profits monthly to the payment of the purchase money, until the whole amount should be paid; that Dalton, though receiving large profits from the mine, had made no payments; that by virtue of a judgment recovered against Dalton, all his interest was sold under execution to one Jacoby, and that thereafter, the plaintiff brought an action of ejectment against Dalton and Jacoby, and recovered a judgment for the possession of the property and perpetually enjoining Dalton, “and all persons claiming under or acting under the authority or discretion of him, his servants or assigns,” from working or disposing of the property. It is further alleged that on the third of November, 1869, certain creditors of Dalton filed, in the United States District Court, a petition in bankruptcy against him, in compliance with which, on the ninth of the same month, he was adjudged a bankrupt under the laws of the United States; that on the fifteenth of that month, the Marshall took possession, and subsequently, the defendant Hyde was appointed assignee of the bankrupt, and that the defendants are about proceeding to work the mine and to sell it, and that they are insolvent. The complaint prayed for an injunction to restrain them from such action.
    The defendant Adams was an agent for Hyde, the assignee in bankruptcy. The defendants moved the Court to dismiss the action, because the United States Courts had exclusive jurisdiction of all the actions concerning property of a bankrupt. The Court overruled the objection.
    Judgment was rendered for the plaintiff, and the defendants appealed.
    The other facts are stated in the opinion.
    
      S. D. Woods and M. G. Cobb, for Appellants.
    
      Quint & Hardy, for Eespondent.
   By the Court, Crockett, J.:

At the trial in the Court below, the defendants moved, on the face of the complaint, to dismiss the action for want of jurisdiction. But the motion was properly denied. The complaint in ejectment was in the usual form, and was complete in itself. That portion of it contained no reference to the proceedings in bankruptcy; and under its averments, the plaintiff might have put in evidence a title and right of possession, having no relation whatever to the bankruptcy proceedings. If it be admitted that the Court had no jurisdiction to grant the injunction on the grounds set forth as the foundation for equitable relief, that may have afforded a sufficient reason for denying the application, but would not have justified a dismissal of the action at law, which, on its face, did not purport to have any connection whatever with the proceedings in bankruptcy.

Nor is there any force in the suggestion that the plaintiff was not entitled to recover in the action at law, because it appeared on the face of that portion of the complaint which was addressed to the equity side of the Court, that the plaintiff had already recovered a judgment of restitution against the bankrupt. The evidence is not before us; and it may be that the plaintiff recovered on a title or right of possession wholly foreign to the proceedings in bankruptcy.

We see no error in the record.

Judgment affirmed; remittitur forthwith.  