176 F.Supp. 713 (D.Colo. 1959), Civ. A. 5836, Coates v. Union Oil Co. of California

Docket Nº:Civ. A. 5836
Citation:176 F.Supp. 713
Party Name:Coates v. Union Oil Co. of California
Case Date:July 09, 1959
Court:United States District Courts, 10th Circuit, District of Colorado
 
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Page 713

176 F.Supp. 713 (D.Colo. 1959)

Robinette L. COATES et al., Plaintiffs,

v.

UNION OIL COMPANY OF CALIFORNIA, a corporation, Defendant.

Civ. A. No. 5836.

United States District Court, D. Colorado.

July 9, 1959

Gorsuch, Kirgis, Campbell, Walker & Grover, Fred A. Deering, Jr., and Raymond Cobb Johnson, Denver, Colo., for plaintiffs.

Akolt, Turnquist, Shepherd & Dick, John P. Akolt, Edward G. Taylor, and Robert A. Dick, Denver, Colo., and Allyn Cole, Glenwood Springs, Colo., for defendant.

ARRAJ, District Judge.

This matter is before the Court upon defendant's motion to strike plaintiffs' demand for jury trial. The precise question to be determined is whether plaintiffs filed their demand for a jury trial within the time prescribed by the Federal Rules of Civil Procedure.

Page 714

Plaintiffs are adverse claimants to defendant, who had filed an application for a patent on lands covered by certain mining claims. In accordance with 30 U.S.C.A. § 30, plaintiffs filed their complaint in this Court on October 30, 1957. Among other things, the plaintiffs alleged that the defendant was in possession of the land and prayed that they recover possession.

The defendant filed its answer on November 19, 1957. On January 6, 1959, at the pre-trial conference, plaintiffs amended their complaint to change the allegation that defendant was in possession to an allegation that the defendant wrongfully and unlawfully claims possession of the land within the mining claims. And the plaintiffs further amended their complaint by deleting the prayer that they recover possession. The defendant filed its answer to the amended complaint on January 15, 1959. On January 20, 1959, the plaintiffs filed their first demand for a jury trial.

The purpose of an action under 30 U.S.C.A. § 30 is to determine which party is entitled to possession of the land in dispute. Clipper Mining Co. v. Eli Mining & Land Co., 1904, 194 U.S. 220, 24 S.Ct. 632, 48 L.Ed. 944; Perego v. Dodge, 1896, 163 U.S. 160, 16 S.Ct. 971, 41 L.Ed. 113. This issue was raised in the original complaint, and the original answer was the last pleading directed to that issue. Under Rule 38(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the parties had ten days from the filing of the original answer to demand a jury trial. Since neither party filed a demand within that time, the right to a jury trial has been waived...

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