Battling in the Courts, 1913-1920


    If M. M. Mauney and his lawyer had handled the problem on their own, emotions likely would not have gotten out of control.  M. M., himself, seldom used the courts to manage his affairs, and had no record of combativeness.  His lawyer, William C. Rodgers of Nashville, was a skillful and respected member of the bar.[1]  Reflecting their attitude as well as Walter’s impatience, the initial suit of April 11, 1913, was reasonably civil, although hastily filed.  The case seemed simple enough at that point:  under terms of the lease, the property had reverted to the owners because defendants had missed the performance deadline of April 10; yet, the defendants remained on the property, interfering with restored rights of ownership.[2]

    The perturbed Millars, however, successfully petitioned to have the case removed from the court in the Mauneys’ hometown of Murfreesboro to the US District Court in Texarkana, Arkansas.  The property was leased not to residents of Arkansas, but to Howard Millar of St. Louis “and his associates and assigns,” including the Kimberlite Diamond Mining & Washing Co. of Missouri.

    At the same time, Austin Millar set up basic equipment in the plant and began digging pits on the two acres of the northeast slope, testing the peridotite beneath the dark surface layer.  His first required reports to M. M. Mauney in the summer of 1913 appeared suspect:  diamonds were very scarce and disappointingly small.[3]

    Now, Walter Mauney effectively took control of the case.  He had found diamonds on the property in the past, and knew others had found them—up to 8.1 carats.  Surely, he told his family, the Millars were not listing everything found.[4]  Following his lead and using a supporting statement provided by an associate, Reece Lamb, his parents added that allegation to an amendment filed in the US District Court in December 1913.  Now, the “disagreeable and obnoxious” defendants not only missed the deadline and “resolutely, persistently, contemptuously and defiantly refused [plaintiffs] access to the property,” they were engaged in fraud.[5]

     More precisely, the defendants were concealing “the true status of said mining operations” and refusing plaintiffs their rights to diamonds.  From the beginning, said the amended complaint, they had been “carrying out a scheme to keep plaintiffs in the dark as to the result of said mining operations” and had not revealed “the number, character, size or value of the stones recovered.”  This was “systematically and persistently carried out with the view of discrediting and demoralizing the mines of plaintiffs and the diamond mining business in Pike County, Arkansas, for the purpose thereby of enabling themselves to buy up all the diamond bearing land in the locality for less than its value and probably for a nominal price.”[6]

    The answers of Austin Millar and the Kimberlite Company, in 1913, displayed similar creative skills.  Denying allegations, Millar argued the deadline for completing the plant was not a condition of the lease, but merely a “covenant” between the principals.[7]  The Company (essentially the Millars) submitted an elaborate brief that basically insisted the plant and other preparations were “about ninety percent” completed before the April 10 deadline, and would have been ready if not impeded by bad weather, “scarcity of labor,” and unforeseen delays in the manufacturing and transporting of machinery and other equipment.[8]

    Portraying itself as victim, the Company alleged the plaintiffs had “fraudulently joined certain laborers in the employ of this defendant, who are citizens of the State of Arkansas, in order to defeat and prevent a removal of the said action into this court, and are threatening and are now about to enter upon the said lands and with force and arms take possession of the buildings, machinery, tramways, sluice ways, appliances and equipment already erected and installed . . ..”  It asked the federal court to declare defendants in compliance with the lease and enjoin the plaintiffs, its agents, and its employees “from interfering with work of defendant.”[9]


     On April 1, 1914, the federal judge issued a one-page decree.  The plaintiffs’ amendment to their original bill—including the blunt charge of conspiracy—was declared an unauthorized late filing, and was stricken.  The plaintiffs’ original bill was dismissed:  the judge found no grounds for forfeiting the lease.  Plaintiffs were ordered to pay all costs of the litigation.[10]


    Still, there was no relief for Millars and associates.  Six months earlier, the Mauneys had filed a civil lawsuit in Pike County Circuit Court, seeking to have defendants ejected from the property.  And, as before, defendants avoided local justice by having the case removed to the US District Court.[11]  But then, immediately after the District Court’s decree of April 1, 1914, M. M. Mauney filed again in Pike County Circuit Court, using a replevin case (determination of ownership) to re-argue basic points of the previous suits.  His complaint focused on the most tangible point of contention:  fifty-nine diamonds the Millars had reported recently, but had failed to market or to offer to the Mauneys for purchase, as required by the lease.[12]

    This time, there was no escape to federal court.  The suit named only Austin and Howard Millar, now clearly residents of Arkansas.   Previously, the Mauneys had challenged the Kimberlite Company’s status in Arkansas, and the Company was banned because it held no license or permit to conduct business in the state.  So the case proceeded in the Pike County Courthouse, Murfreesboro, according to the law of replevin.

    As an initial step in procedure, the Circuit Judge ordered the county sheriff to pick up the contested diamonds and take them to M. M. Mauney.  Such orders included a writ for the arrest of the persons holding the property if they failed to comply.  On April 13, 1914, Sheriff J. E. Chaney served the papers on defendants Austin and Howard Millar, demanding they turn over the diamonds.  Chaney arrested the two for noncompliance and held them until they posted bond.[13]

    In following argument in court, both sides revisited all the basic issues.  As for the diamonds, the Mauneys emphasized that in contrast to those reported by defendants, “many large diamonds” were found previously on the leased mine “by surface hunting and hand washing,” including one diamond weighing about as much as all fifty-nine at issue.[14]  The Millars insisted it had been “impossible for these defendants to procure an offer for said diamonds for the reason that said diamonds are mined nowhere in the United States and there is no market for stones such as have been recovered by the defendants from the leased land.”  They admitted they still held all diamonds recovered, including the fifty-nine, but said the plaintiff had received full information about them and had never “fixed a price at which he was willing to sell or buy.”[15]


    On October 5, 1914, a jury of twelve peers reported their verdict.  The plaintiff was awarded the fifty-nine diamonds or $100 for his share of their estimated value.  On two questions of fact, however, the jury found for the defendants:  they had neither entered into the lease “with the fraudulent purpose of not complying with its terms” nor failed to comply with the terms.  The judge, swayed by the finding of fact, sustained a motion of the defendants and decreed that “plaintiff take nothing by this suit.”  Moreover, the plaintiff had to pay all costs expended by the defendant.[16]

    Mauney’s appeal to the Arkansas Supreme Court failed.  On March 29, 1915, it upheld the lower court.[17]

    By early 1915, the rancorous argument reached a plateau, and then two events assured even greater antagonism.  M. M. Mauney died in April, leaving Walter to handle family affairs.  At the same time, the Millars managed to buy the bankrupt Ozark Mine adjoining the leased property.[18]  When they proceeded to wash Ozark dirt at the Prairie Creek Plant, while reducing work at the Mauney Mine, a breech of contract seemed obvious.  The Mauneys added that complaint to renewed suits in the Chancery and Circuit courts, along with further petitions focusing upon diamonds the Millars recovered recently.[19]

    Up to 1916-1917, the Millars succeeded in court for one basic reason:  judges and juries felt they made a reasonable effort to comply with terms of the lease.  It was clear the operation on the Mauney Mine never met the annual requirement of 10,000 loads; yet, the sense of progress was there, along with the appeal of the bad-weather defense.  Then, in 1915-1916, activity at the mine dwindled noticeably.[20]  By the winter of 1917-1918, the property was effectively abandoned, and in April the Mauneys returned to Chancery Court with a more persuasive case.  The defendants had “procrastinated, neglected and refused to operate said mine” since April 10, 1917.  They had “all that time been shut down” and currently were “not operating.”[21]

     The Millars had only two arguments left.  First, they invoked the flexibility clause of the Supplemental Lease Agreement, declaring “it was determined early in 1917 that it was necessary to resort to deep mining for the purpose of ascertaining the extent and character of the diamond bearing dirt.”  But, they said, the nation’s involvement in the war with Germany brought restrictions on dynamite, other material, and labor; so they continued washing, “and did wash ten thousand loads of dirt per annum which necessarily consisted largely of overburden . . ..”  Meanwhile, at “great expense,” they employed competent engineers to determine the best location for a mining shaft, which probably would have to extend to a depth of 500 feet.[22]

    Next, the Millars alleged the plaintiffs were largely responsible for delays at the mine.  Defendants had spent “more than one Hundred Thousand Dollars” complying with the lease; all the while, plaintiffs had harassed, sued, and threatened them—and worse.  The defendants’ Kimberlite Mine had been burned, their fences cut, their livestock poisoned, and some of their employees arrested on frivolous charges, the Millars said.  Moreover, they alleged:


. . . on the 10th day of May, 1918, while these defendants were traveling along the public highway, the plaintiff Walter Mauney sought to assassinate them, fired several shots at them, one of which went through the dash-board of the buggy in which they were riding, and finally on the 13th day of January, 1919, as defendants believe [was] by the instigation and procurement of the plaintiffs, the plant which had been erected [at Prairie Creek] for the washing of the diamond bearing dirt, as well as another plant belonging to the defendants on what is known as the Ozark property and an eight room house—the two plants being one mile apart—were burned on the same night.[23]


    Unswayed, the Chancery Court ruled for the plaintiffs in October 1919, and dismissed the defendants’ allegations of harassment and violence.  Defendants were given sixty days to remove any buildings and equipment still on the properties, but otherwise were ordered to stay away and leave plaintiffs alone.  Defendants had to pay all costs of the law suit.  Upon appeal, the Arkansas Supreme Court upheld the lower court on March 8, 1920, and denied defendants a rehearing.[24]

    Walter Mauney and family, however, wanted more satisfaction—as well as more certainty.  Nine days after the Supreme Court’s ruling of March 8, seven triumphant members of the family filed individually in Circuit Court against each of the three main defendants, the Millars and the Kimberlite Company.  This frivolous salvo was of course dismissed swiftly, without prejudice.[25]  Continuing, the Mauneys filed another basic suit in Circuit Court a week later, this time saying Austin and Howard Millar, Trustees, had been inactive since April 27, 1918, and were moving remnants of the plant at Kimberly to their own property (the Ozark Mine).  There was no effort to rebuild the plant.  The defendants answer failed to convince a twelve-member jury, which found for plaintiffs and granted full recovery of leased properties.  Defendants paid all costs.[26]


    With no other recourse, the Millars and an old associate in St. Louis filed their final suit in the US District Court in May 1920, unsuccessfully seeking intervention and restoration of the lease.  In 1921, the Mauneys reclaimed the properties fully.[27]



[1] A petition to the Pike County Circuit Court in 1908 was unusual, but still consistent with M. M. Mauney’s overall record of behavior (Millard M. Mauney, and Bettie L. Mauney, vs. Ozark Diamond Mining Company, December 12, 1908, Civil #707, in file drawer 47, Pike County Court House).  Facing a difficult task of dividing the forty-acre “Mauney Diamond Mine” property with the Ozark group, he simply petitioned the court to determine the division, if possible, or else order the land sold and the proceeds divided equitably (the context is provided infra, “Ozark Company”).  Evidently, the parties reached an amiable agreement without formal court intervention.


[2] “Complaint,” Equity No. 12.  W. C. Rodgers prepared the two-page petition, and continued serving the Mauneys throughout the feud. 


[3] Infra, “Millars and the Kimberlite Company–Mauney Lease.”


[4] Henry Mauney’s account, passed down to his children and grandchildren, was clear about Walter’s suspicions and his role in convincing the family Millar was dishonest.  A few documents in the Mauney Records add perspective, but also raise questions as to who originated the charge of dishonesty (see Reece Lamb’s statement, infra).

    A few comments in Millar’s Finders-Keepers at least seem to lend credibility to Walter’s suspicion.  For instance, while badly misstating the time period involved, he said, “The plant got into operation in July of 1913, and more than a thousand diamonds were recovered during a period of about three months [that count was reached in late 1914].  We divided these with the Mauney heirs, as agreed, on a 25 per cent royalty basis.  I remember that one of these diamonds was a fine one of about six carats, which was also of fine quality.  Most of the diamonds recovered ranged from one carat to one and a quarter carats” (44).  Cf. the Millars’ reports to M. M. Mauney, infra. 


[5] “Amendment to Complaint,” December 12, 1913, US District Court for the Western District of Arkansas, Texarkana Division, Equity No. 12.  Lawyers for the plaintiffs:  W. H. Arnold, W. C. Rodgers, and J. C. Pinnix; supra (Lamb).  The Mauney Records has Reece Lamb’s undated statement, handwritten on Diamond State Bank (Kimberly) stationery.  Lamb said he was on the way to St. Louis and was leaving the statement in case of an accident.  Then he continued:

      “I say that Howard A. Millar a short time before the contract was signed between Mauney & Millar[,] he told me if I would use all my influence in getting a contract signed by Mauney, he had a scheme fixed by which he and his associates and myself could control the diamond mines of Pike County Arkansas. 

      “His proposition was as follows--  He Howard A Millar and his associates would install a washing plant and wash the dirt on the Mauney mine but would keep all diamonds of good quality hid from Mauney and the public so as to discredit the diamond mines of Pike County Arkansas, by which means we could easily buy for a small sum all the other mines.”  (Signed, Reece Lamb.)

    There is also a brief letter of November 27, 1913, from Lamb to M. M. Mauney.  Then at the Hotel Marion, Little Rock, Lamb referred to an impending meeting in Texarkana, and said he would come any time needed.  His statement was used to support the Mauneys’ amended complaint, filed at the District Court two weeks later.

    A promoter and an associate of the Mauneys, Lamb had been involved with the original Ozark group and the American Diamond Mining Company (see those sections, notes).


[6] “Amendment to Complaint.”


[7] “Separate Answer of the Defendant, Austin Q. Millar,” 1913, US District Court, Equity No. 12.  Lawyer, George B. Webster.


[8] “Amended Answer and Cross-Bill of the Kimberlite Diamond Mining and Washing Company,” December 2, 1913.  Lawyer, George B. Webster.


[9] Ibid.


[10] “Decree,” April 1, 1914, Equity No. 12.


[11] Pike Circuit Court, Civil, Record C, 120, M.M. Mauney, et al., vs. Kimberlite Diamond Mining & Washing Company, September 17, 1913, No. 989 (defense granted removal to US District Court).  The Kimberlite Company’s “Amended Answer and Cross-Bill, December 1913 (supra, Equity No. 12), asked the District Court to enjoin the plaintiffs from further prosecuting the “action of ejectment.”


[12] “Complaint at Law,” M. M. Mauney vs. Howard A. Millar; Howard A. Millar, Trustee; Austin Q. Millar; Austin Q. Millar, Trustee, April 11, 1914, Pike Circuit Court, No. 23; appealed to Arkansas Supreme Court, Opinion 117 Arkansas 633.  Infra, “Millars and Kimberlite Company–Mauney Lease,” summarizes the Millars’ reports to Mauney.

    M. M. Mauney, encouraged by Walter, had started building a case in March, sending the Millars a “Notice” requesting “as early as convenient an itemized list or inventory of all diamonds taken from my land in Pike County . . ., giving the size, color, quality, grade and approximate value” (undated, I.Y, Crater).  Replying, Howard Millar referred to diamonds shown to Mauney recently, but said he and his father had no scales to weight them and were not expert enough to evaluate them.  To determine value, they needed to accumulate enough diamonds to send to experts in New York or Chicago (Millar to M. M. Mauney, March 14, 1914, ibid.).  A separate letter of the same date again mentioned the diamonds shown recently and said twenty-five more had been recovered.  “These are subject to your inspection at any time during our business hours at the plant” (ibid.).  Mauney did not visit the plant.  Almost two weeks later, Howard reported thirty-four more diamonds, making the total of fifty-nine; this time, he gave the colors and the combined weight of all fifty-nine, slightly under nine carats.  Apparently, all were quite small (March 26, 1914, ibid.).  Another report on April 7 listed forty more diamonds, including “fragments” and tiny “sands.”  Totaling slightly over five carats, this was the puniest batch to date (April 7, 1914, ibid.).  A few days later, Mauney filed suit.


[13] “Endorsement,” April 13, 1914, J. E. Chaney, Sheriff, Pike County, ibid.  The Sheriff endorsed the Order of Delivery, which instructed him to take the diamonds to M. M. Mauney.  Millar’s copy of the order, dated April 11, 1914, is in his collection at the Crater (Correspondence, I.H). 


[14] Complaint at Law, April 11, 1914, p. 5.  The Mauneys still alleged “fraudulent purpose,” “fraudulent conduct,” and scheming generally.  Their “Amendment to Complaint,” September 23, 1914, alleged the Millars had gotten the lease intending to use the plant to process dirt from their mine located about two and a half miles away—the Kimberlite Mine.  Defendants and associates never intended to be “true and faithful to the interest of the plaintiffs.”


[15] “Joint Answer of the Defendants,” September 23, 1914, pp. 3-4.  Defendants of course denied other allegations.  Infra, “Millars and Kimberlite Company–Mauney Lease,” discusses other points in the Joint Answer.

    In March 1915, the Millars again reported:  “We have not yet found a market for the rough diamonds” (Millar to Mauney, March 23, 1915, I.Y, Crater).  Eventually, the accumulated treasure was divided.


[16] “Judgment,” October 5, 1914.  The defendants filed a “Motion for judgment not withstanding the verdict”; the judge sustained it “upon the special finding of the facts by the jury.”


[17] Arkansas Supreme Court, Opinion 117 Arkansas 633.


[18] Infra, “Reprieved by Ozark Purchase.”  Headstones in the Murfreesboro Municipal Cemetery are consistent with the general record:  Millard M. Mauney, January 30, 1853-April 15, 1915; Bettie M. Mauney, April 26, 1853-January 11, 1944; Walter Mauney, 1880-1947; and Henry Mauney, 1887-1968. 

    Howard Millar’s memoir probably exaggerated a bit in saying the death of M. M. Mauney “was quite a blow to us, since we considered him our friend, if not his son Walter” (Finders-Keepers, 44).  That could have been true a few years earlier.


[19] The Pike Chancery Court still found no grounds for turning the diamonds over to the Mauney’s.  In May 1917 it dismissed another complaint that had originated in Circuit Court, involving diamonds reported in 1916; but it ordered defendants, the Millars, to certify all diamonds recovered since April 24, 1915, and deliver them to the court for disposal (Chancery Record D, 10, “Decree,” Bettie L. Mauney, et al., vs. Austin Q. Millar, W. L. Wilder, and Howard A. Millar, May 24, 1917, Chancery, No. 847; “Complaint at Law,” ibid., August 26, 1916, Pike Circuit, Civil ).  Eventually, the lawyers arranged an equitable division (25% to the Mauneys).

    The accumulated diamonds undoubtedly comprised most of those on the “List of Diamonds in Box,” II.N, Crater archive (undated, but continuing after 1916).  The list indicated the total number for each type of diamond, basically by color and quality; the grand total was 1,821 stones weighing 291.48 carats. Also see the large collection of used diamond wrappers, “Misc.” box, Crater.  With only three exceptions, each of the wrappers also has detailed description; some indicate either the Ozark or the Mauney Mine as the source; some are dated.  The wrappers represent the usual method of handling diamonds after recovery at the plant:  rough stones were cleaned with acid, then wrapped in the special paper and, in this case, kept in a box.  In the Crater archive, the wrappers are still in a small cardboard box—apparently as Howard Millar finally left them.


[20] Infra, “Millars and Kimberlite Company–Ozark Purchase.”


[21] “Complaint in Equity,” Bettie L. Mauney, et al., vs. Austin Q. Millar, et al., Trustees, April 27, 1918, No. 931 (appealed to Arkansas Supreme Court; decision, March 8, 1920, SC 219 Sw. 1028).  No “act of God” should excuse defendants’ inaction, plaintiffs said.  They assured the court they were willing to allow defendants a reasonable time to remove equipment and structures from the properties.


[22] “Amended and Substituted Answer and Cross Bill,” Bettie L. Mauney, et al., vs. Austin Q. Millar and Howard A. Millar as Trustees, 1919 (Chancery No. 931; Supreme Court 219 Sw. 1028), 6-9. 


[23] Ibid., 9-10.  Henry Mauney’s grandson, Al Terrell of Murfreesboro, recalled hearing the family’s side of the story from an early age (notes in author’s possession).  According to this more credible account, Walter Mauney intended only to “throw a scare” into the Millars, by firing his rifle at the rear of the buggy as they passed on the old county road next to his house on Prairie Creek—about forty yards away.  So far as anyone knows, this was the only time a firearm was used.  Howard Millar later insisted someone also fired at him after dark.


[24] “Decree,” Chancery Court, October 13, 1919, No. 931; SC 219 Sw. 1028, April 12, 1920 (rehearing denied).


[25] Pike Circuit, Civil, Record C, 528-532, March 17, 1920, No. 349-370.  Plaintiffs paid all costs.  The cohesive seven:  Walter Mauney, Bettie Mauney, Henry Mauney, Occo Alford, Roxie Kempner, Mesilla Shackelford, and Alice Peel.   


[26] “Complaint at Law,” Bettie L. Mauney, et al., vs. Austin Q. Millar and Howard A. Millar, Trustees, April 23, 1920, Pike Circuit, Civil; “Answer, Demurrer and Motion to Transfer to Equity,” ibid., 1920; Pike Circuit, Civil, Record D, 11-12, Bettie L. Mauney, et al., vs. Austin Q. Millar and Howard A. Millar, Trustees, March 24, 1921, No. 389 (jury found for plaintiffs; motion for new trial denied; appeal to Supreme Court granted).

    In their answer, defendants repeated the argument about underground mining, the impact of the war, and harassment by plaintiffs.  As for a new plant, they said, “it will cost a large sum of money—more than a quarter million dollars to construct a plant necessary to commercially mine said land,” and because of “the fraud, malice and harassment inflicted upon them by the plaintiffs,” they had been “hampered in making the necessary financial arrangements to construct said plant” (5-6).


[27] “Complaint in Equity,” Austin Q. Millar, Howard A. Millar and W. L. Wilder, as Trustees, vs. Bettie L. Mauney, et al., May 24, 1920, US District Court, Western District of Arkansas, Texarkana Division, Equity Case No. 45, NARA Ft. Worth (Accession-transfer No. 55-A-843; FRC Location No. 72657; Record Box No. 118); “Joint Answer of all Defendants,” ibid., June 24, 1920.  In the case file, Equity No. 45 concluded with a brief letter of November 22, 1920, referring to accompanying legal documents introduced by plaintiff.  The writer, an attorney for the Millars, asked the recipient to keep the papers available for later reference when the attorney was ready to write a brief (J. B. McDonough, Attorney for the Kansas City Southern Railway Company, Ft. Smith, Arkansas, to James K. Perkins, Ft. Smith).  The case file includes no response from the court except the routine summons.

    In their Answer, the Mauneys challenged the federal court’s jurisdiction, pointing out that all parties in the case except Wilder resided in Arkansas.  The also claimed their right to a trial by a jury of their peers, and requested recovery of all expenses.   The Millars seem to have reconsidered all the circumstances and terminated the suit.  


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