Gentry v. United States

• Decision Date: 21 March 1900
• Docket Number: 1,261
• Citation: 101 F. 51
• Parties: GENTRY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

101 F. 51

GENTRY v. UNITED STATES.

No. 1,261

United States Court of Appeals, Eighth Circuit.

March 21, 1900

Clyde C. Dawson (Charles D. Hayt and Earl M. Cranston, on the brief), for plaintiff in error.

Greeley W. Whitford and T. E. McClelland, for the United States.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

One may not bring a suit for one cause of action, and recover judgment for another. A court can consider only what is in issue under the pleadings. Averments without proofs, and proofs without averments, are unavailing. The judgment may not go beyond a determination of the issues presented by the pleadings, nor beyond the scope and object of the prayers they contain. These are axioms in the law of pleading and practice. They rest upon the basic principles of our jurisprudence, that no man shall be deprived of his life liberty, or property without due process of law; and due process of law must give to the parties to be affected an opportunity to be heard respecting the justice of the judgment sought. It must be one which gives notice of the issue to be determined, which hears before it condemns proceeds upon inquiry, and renders judgment only after trial. Burton v. Platter, 10 U.S.App. 657, 663, 4 C.C.A 95, 99, 53 F. 901, 905; Taussig's Ex'rs v. Glenn 4 U.S.App. 524, 541, 2 C.C.A. 314, 318, 51 F. 409, 413; Merrill v. Rokes, 12 U.S.App. 183, 188, 4 C.C.A. 433, 435, 54 F. 450, 452; Live-Stock Co. v. Blackburn, 30 U.S.App. 571, 579, 17 C.C.A. 532, 536, 70 F. 949; 954; Wood v. Collins, 23 U.S.App. 224, 230, 8 C.C.A. 522, 525, 60 F. 139, 142.

The judgment in this case violates all these rules. The suit was an action of conversion brought by the United States against the plaintiff in error, James C. Gentry, and another, henceforth called the 'defendants.' The complaint consisted of three counts. In the first the plaintiff, the United States, alleged that the defendants had cut down and carried away from the land of the United States yellow pine and spruce trees sufficient to make 500,000 feet of lumber, which was worth $5,000; that this lumber was the property of the United States; and that the defendants had converted it to their own use, to the damage of the plaintiff in the sum of $5,000. In the second the plaintiff alleged that in September, 1898, it was the owner and in possession of 500,000 feet of wood, board measure, of the value of $5,000, and that the defendants took the same from the plaintiff's possession and converted it to their own use, to the damage of the plaintiff in the sum of $5,000. In the third count it alleged that in June, 1898, it was the owner of 500,000 feet of wood, of the value of $5,000, and entitled to the immediate possession of the same, but that defendants were in possession thereof, and thereupon converted the same to their own use, to the damage of the plaintiff in the sum of $5,000. The prayer of the complaint was for judgment against the defendants for $5,000, with legal interest thereon from the 22d day of September, 1898, and for the costs of the action. The defendants denied the allegations of the complaint, and the defendant Gentry further answered that the three causes of action set forth in the plaintiff's complaint all related to one supposed cutting and conversion of timber; admitted that he had cut certain timber and trees, sufficient to make about 500,000 feet, board measure, of lumber; and justified his cutting under the act of June 3, 1878 (20 Stat. 88), which provides that citizens of the United States who are bona fide residents of the state of Colorado and Nevada, and of certain territories and mineral districts of the United States 'are hereby authorized and permitted to fell and remove, for building, agricultural, mining, or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States, except for mineral entry, in either of said states, territories or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the secretary of the interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes. ' He further alleged in his answer that the possession of the unsold lumber made by him from the timber which he had cut had been taken from him under a supposed writ of replevin issued in this case, and prayed that he might go hence without day, and might have judgment for the possession of the lumber taken by the officers of the court. The United States filed a replication in which it denied all the averments of this answer, including the allegation that a writ of replevin had been issued in this case, and that the property had been taken from the defendant thereunder; and it again prayed for judgment for $5,000, interest, and costs, on account of the conversion. There is a bill of exceptions in the record, which purports to contain all the testimony. There is no evidence in this bill that any writ of replevin was ever issued, or that any property was ever taken thereunder. There is in the record preceding the bill of exceptions the copy of an affidavit in replevin, of a writ in replevin, and of a return thereon; but these copies are not material to the determination of this...