Bracken v. Union Pac. Ry. Co.

• Decision Date: 29 May 1893
• Docket Number: 157.
• Citation: 56 F. 447
• Parties: BRACKEN v. UNION PAC. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 447

BRACKEN v. UNION PAC. RY. CO.

No. 157.

United States Court of Appeals, Eighth Circuit.

May 29, 1893

C. S Montgomery, for plaintiff in error.

John M Thurston, (W. R. Kelly and E. P. Smith, on the brief,) for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

CALDWELL Circuit Judge.

This is an action of ejectment brought by the Union Pacific Railway Company against James A. Bracken to recover the possession of a half section of land in Merrick county, Neb. It is not controverted that the plaintiff acquired the legal title to the land under a patent issued to it by the United States in 1875. In addition to a general denial of the averments of the plaintiff's petition, the answer alleged that the defendant acquired title to the land under two tax deeds, one dated September 21, 1875, for one-half of the land, and the other dated January 31, 1876, for the other half, and open notorious, public, exclusive, and continuous adverse possession of the same from the date of said deeds down to the commencement of the action, and pleaded the statute of limitations of 10 years. It is conceded the tax deeds were ineffectual to pass the legal title to the land. The real controversy in the lower court was over the question whether the defendant had had the requisite possession of the land for the length of time required to bar the action under the statutes of Nebraska. Upon this issue the plaintiff offered and the court admitted in evidence, over the objection of the defendant, what purported to be the record of a judgment of the circuit court of the United States for the district of Nebraska in an action of ejectment between the parties to this suit for the land here in controversy, wherein it was adjudged that the plaintiff in that action, the Union Pacific Railway Company, recover of the defendant therein, James A. Bracken, the possession of the premises in controversy, and that process issue to put the plaintiff in possession of the same. The plaintiff also offered, and the court admitted in evidence, over the objection of the defendant, a writ of possession issued on said judgment on the 10th day of July, 1890, commanding the marshal of the district to remove the defendant in said action from said premises, and to put the plaintiff in possession thereof, and the marshal's return thereon, which was as follows: 'I hereby certify and return that I received this writ on the 10th day of July, A. D. 1890, and I have served the same in Merrick county, state and district of Nebraska, by causing the defendant to forthwith remove from the within-described premises, and by placing the plaintiff in possession of the same.' It appears from the record offered in evidence that on the 10th day of February, 1880, the plaintiff in this suit filed in the circuit court of the United States for the district of Nebraska a petition in an action of ejectment against the defendant in this suit, asking judgment for the land here in controversy. No summons was issued in the case. An affidavit of the plaintiff's attorney was filed with the petition, alleging that the defendant was a nonresident of the state and district of Nebraska, and that service of summons could not be had upon him in the district. Thereupon the plaintiff published in a newspaper a notice, signed by it, directed 'to the said J. A. Bracken, nonresident defendant,' stating that said petition had been filed, and that unless the defendant appeared and answered the same by the 26th day of April, 1880, judgment would be rendered against him. This notice was published four consecutive weeks. The defendant did not appear to the action, and, without other notice or service of process on the defendant, the court, on the 8th day of May, 1880, rendered by default the judgment which was introduced in evidence.

It is claimed in the brief of the defendant in error that the proceedings to obtain service on the defendant by publication conformed to the practice in the state courts in like cases under the statutes of Nebraska. Whether this claim is well founded or not we need inquire. It is certain that they did not...