Blythe Co. v. Hinckley

• Decision Date: 07 October 1901
• Docket Number: 661.
• Citation: 111 F. 827
• Parties: BLYTHE CO. v. HINCKLEY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

111 F. 827

BLYTHE CO. v. HINCKLEY et al.

No. 661.

United States Court of Appeals, Ninth Circuit.

October 7, 1901

George W. Towle, Jr., and Lorenzo S. B. Sawyer, for appellant.

Robert Y. Haynes, W. H. H. Hart, and S.W. & E. B. Holladay, for appellees.

This is an appeal from the judgment of the circuit court dismissing a bill filed therein to review a pro confesso decree of the same court entered December 22, 1897, for alleged errors appearing upon the face of the record. The suit which was the foundation of the proceedings in the court below was one branch of the long-pending contest over the large estate left by the late Thomas H. Blythe, and was initiated in the circuit court by the filing on the 3d day of December, 1895 by John W. Blythe, alleging himself to be a citizen of the state of Kentucky, and Henry T. Blythe, alleging himself to be a citizen of the state of Arkansas, against Florence Blythe Hinckley, Frederick W. Hinckley, for her husband, and the Blythe Company, therein alleged to be citizens of California, of a complaint entitled, 'Complaint to Quiet Title,' in which it is alleged that the plaintiffs are the owners, as tenants in common with each other, of that certain piece of land situated in the city and county of San Francisco known as the 'Blythe Block,' 'and also all those various tracts and parcels of land in the county of San Diego, state of California, amounting in all to forty thousand acres of land, more or less, and standing of record in the county recorder's office of said San Diego county in the name of Thomas H. Blythe, now deceased'; that the defendants to the suit claim that they have or own adversely to the plaintiffs some interest in the property, which claims the plaintiffs allege are false and groundless, and constitute a cloud upon the plaintiffs' title. The prayer of the complaint is that the defendants be required to set forth and produce their claims, and that it be adjudged by the court that the defendants to the suit have no right or title to any part of the property described, and the plaintiffs' alleged title be adjudged good and valid as against the defendants, and each of them. Seven days thereafter the complainants in that suit filed an amended complaint containing, in addition to the allegations of the original complaint, the averments that the Blythe Company is a corporation organized and existing under the laws of the state of California, and having its office and principal place of business in the city and county of San Francisco and that each of the defendants is a resident of the Northern district of California, and that at the time of the commencement of the suit neither one of the parties was in possession of any part of the lands involved therein. Upon this amended complaint a summons was issued, and on December 21, 1895, served upon George W. Towle, Jr., attorney for the Blythe Company, and personally served upon the defendants Florence Blythe Hinckley and Frederick W. Hinckley, her husband. The Blythe Company answered the amended bill on the 28th day of December, 1895, in which answer, after denying among other things, that the plaintiffs, or either of them are the owners or tenants in common with each other, or otherwise, of any part of the lands in controversy, 'as and for a cross complaint of defendant the Blythe Company against said plaintiffs, John Wesley Blythe and Henry Thomas Blythe, and each of the,' alleges, among other things, that the Blythe Company is the owner of the lands in controversy; that no part of them was in the possession or control of any party to the suit at the time of the commencement of the action; that the plaintiffs, John Wesley Blythe and Henry Thomas Blythe, claim some interest therein adverse to the alleged ownership of the Blythe Company, which claims the cross complainant alleges to be false and groundless, and prays judgment accordingly against the plaintiffs, and also 'that it be adjudged herein that defendants Florence Blythe Hinckley and Frederick W. Hinckley, her husband, are not, and that neither of said defendants is, the owner of or the holder of any interest in the lands in said complaint described, or any thereof; that the defendant the Blythe Company have judgment that it is the owner of said lands in said complaint described, and all thereof.' On the 30th day of December, 1895, Florence Blythe Hinckley and Frederick W. Hinckley appeared specially, by leave of the court, and moved to quash the service of summons issued upon the amended complaint, on the ground that the suit was one that is only cognizable in a court of equity, and that the proper process to be issued in such a suit is that of subpoena. That motion was granted February 10, 1896. Thereafter a subpoena was issued upon the amended complaint and served upon the defendants Hinckley, who on November 2, 1896, entered a general appearance to the suit, and on December 14, 1896, filed a plea in bar thereto, alleging that the statement in the amended bill of complaint that the complainants are the owners, as tenants in common with each other, of the lands therein described, is based solely upon the claim that they are the lawful heirs and next of kin of Thomas H. Blythe, deceased, and that upon his death they inherited and acquired by succession the title to the real property described in the bill of complaint. The plea alleged that Thomas H. Blythe died intestate in San Francisco on the 4th day of April, 1883, and that at and before his death he was a citizen of the United States, and the owner of the real estate in controversy. It then proceeds to set forth in detail the probate proceedings in the superior court of San Francisco in the matter of the estate of Blythe, and the proceedings of that court upon the petition of Florence Blythe under the provisions of section 1664 of the Code of Civil Procedure of California, in which proceedings it was on October 22, 1890, adjudged and decreed that Florence Blythe (subsequently Florence Blythe Hinckley) was the child of Thomas H. Blythe, deceased, and that he legally adopted her as his lawful child and heir, and that as such she was the owner of all the estate of Thomas H. Blythe, deceased, wherever situated, and the only person entitled to have and receive distribution of his estate. The plea also recited proceedings on appeal to the supreme court of the state from that judgment, and its affirmance by the supreme court, and also the subsequent proceedings in the probate court, resulting in a decree distributing the estate of Thomas H. Blythe to Florence Blythe Hinckley; an appeal from that decree to the supreme court of the state, and its affirmance. The plea further alleged that on December 4, 1894, and prior to the commencement of the suit in which it was interposed, the possession of the whole of the property in controversy had, under that decree of distribution, been delivered to Florence Blythe Hinckley, since which time she has continued in its actual possession; and the plea prayed the judgment of the court in the premises. It was not by the complainants set down for argument, nor was issue joined thereon by them; but on January 14, 1897, they filed in the suit, by leave of the court, a 'second amended and supplemental bill in equity,' in which they omitted all reference to any of the property except the Blythe Block, and in which they alleged that Boswell M. Blythe, a citizen of California, and resident at Downey, in that state, was one of the heirs at law of Thomas H. Blythe, and was entitled to have some share in his estate, but by reason of his citizenship he could not be joined as complainant in the bill, and he was therefore made a defendant, in order that his rights might be protected; and this second amended and supplemental bill proceeded to set forth the substance of the proceedings in the state courts with respect to the estate of Thomas H. Blythe, substantially as contained in the plea of Florence Blythe Hinckley and Frederick W. Hinckley, and alleged further that the defendant Florence was born in England, the bastard child of an unmarried woman; that at the time of her birth her mother was a resident of England, and a subject of Victoria, queen of Great Britain and Ireland; that she remained in England at all times until after the death of Thomas H. Blythe; that she came to California for the first time in 1883; that she was then an an infant, about 10 years of age, ineligible to become a citizen of the United States, and when she arrived in California was a nonresident alien. The second amended and supplemental bill then refers to the treaty of 1794 between Great Britain and the United States sections 17 and 22 of article 1 of the constitution of the State of California, and sections 671, 672, and 1404 of the Civil Code of California relating to the rights of foreigners and aliens to take real estate by succession as heirs at law of deceased citizens of the state, and then alleges, in various forms, that the superior court of San Francisco was without jurisdiction to adjudge or decree that Florence Blythe was capable of inheriting the real estate as heir at law of Thomas H. Blythe; that at the time of the commencement of the suit neither party thereto was in possession of the land situated in San Francisco, but that the same was in the possession of the public administrator of that city and county; that on October 26, 1894, the superior court of the city and county of San Francisco entered a decree of distribution, wherein all the real property belonging to the estate of Thomas H. Blythe, deceased, was distributed to Florence Blythe Hinckley, and that on December 4, 1894, possession thereof was delivered to her; that the property situated in San Francisco is covered with stores and tenements, which are...