Collins v. Streitz

Decision Date04 March 1938
Docket NumberNo. 8616.,8616.
PartiesCOLLINS v. STREITZ.
CourtU.S. Court of Appeals — Ninth Circuit

COPYRIGHT MATERIAL OMITTED

John W. Ray, of Phoenix, Ariz., for appellant.

D. P. Skousen, of Phoenix, Ariz., for appellee.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

STEPHENS, Circuit Judge.

This is an appeal from a judgment for defendant (appellee here) entered on a directed verdict in an action brought by plaintiff (appellant here) for damages for trespass to property in Maricopa County, State of Arizona.

Appellee has made a "Motion to Dismiss for Want of Jurisdiction" on the ground that the bill of exceptions was not filed in the District Court within the time provided by rule 38 of that court, which rule allows twenty days from the date of entry of the order overruling a motion for a new trial for such filing.

The failure of the appellant to have a bill of exceptions approved and allowed within the proper time is not ground for a motion to dismiss the appeal, but to strike the bill from the record, National Veneer Co., Inc. v. Langley, 1928, 4 Cir., 29 F.2d 403. See, also, O'Brien, Manual of Federal Appellate Procedure (1937 Supp.) p. 52.

However, we have considered the motion before us as one to strike the bill. The judge's certificate recites as follows: "This Bill of Exceptions being duly presented to the Court within the extended time allowed is upon consideration allowed and certified as true. * * *" It has been definitely settled in this Circuit that though "it must affirmatively appear from the record that the trial court had jurisdiction to approve the bill of exceptions," the certificate of the trial judge to the bill of exceptions showing such fact is sufficient; at least, in the absence of anything to the contrary in the bill. United States v. Paul, 1935, 9 Cir., 76 F.2d 132; Welch v. St. Helens Petroleum Co., Ltd., 1935, 9 Cir., 78 F.2d 631; United States v. Alcorn, 1935, 9 Cir., 80 F.2d 487; E. K. Wood Lumber Co. v. Andersen, 1936, 9 Cir., 81 F.2d 161; Long v. United States, 1937, 9 Cir., 90 F.2d 482. The recital in the certificate attached to the bill considered in U. S. v. Alcorn, supra, was almost identical with that found here. And it has been held in this Circuit that where the certificate makes no recital from which the fact of jurisdiction appears, but there are orders showing that the bill was settled in time, which orders are not made a part of the bill of exceptions but are printed in the transcript, the appellate court may not consider them, since they are not a part of the record for purposes of review. U. S. v. Payne, 9 Cir., 72 F.2d 593; Sims v. Douglass, 1936, 9 Cir., 82 F.2d 812. Since such orders have no efficacy to validate a bill, it follows that they may not be used for the purpose of impeaching a validating recital found in the certificate. It appearing from the bill before us that it was "presented" within time and it being settled that, when a bill is submitted to the trial judge personally for his action and his action is invoked within the term, as stated, or as properly extended, no further extension of time is necessary. E. K. Wood Lumber Co. v. Andersen, supra. The motion to strike the bill must be denied.

The case is so inadequately presented to us that our labors would have been less had there been no briefs at all. The only ground suggested for affirmance of the judgment is that the matter is in some way controlled by the opinion of this court in Collins v. Mosher, 91 F.2d 582. No part of the record in that case is before us, but the mere reading of the opinion shows that that case could not affect the issues in this case. Appellant's Opening Brief offends almost every provision of our rule 24 and could properly be stricken from the files. However, since we could allow amendment, we refrain from taking that step.

Upon the conclusion of the defendant's case, she made a motion for a directed verdict. The motion was granted, to which ruling objection was made and exception allowed. A verdict for defendant was directed and judgment was entered thereon. Plaintiff moved for a new trial, which motion was denied. She has appealed from the judgment.

Twelve separate assignments of error are made, but all are determined by our consideration of assignment 11. "The trial court erred in granting the motion of defendant Streitz for a directed verdict in her favor and in so directing the jury to do."

The power of a federal court to direct a verdict is not affected by the Conformity Act, 28 U.S.C.A. § 724, and exists irrespective of the state practice. Julius Klugman's Sons, Inc. v. Oceanic Steam Nav. Co., 1930, D.C., 42 F.2d 461; Gill v. Waterhouse, 1917, 9 Cir., 245 F. 75. A mere scintilla of evidence does not require submission of an issue to the jury. The question for the judge is "whether there is any evidence upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Gunning v. Cooley, 1930, 281 U.S. 90, 50 S.Ct. 231, 233, 74 L. Ed. 720.

These principles govern our consideration of the court's action in directing the verdict, but since this suit involves title to land we must follow the state rules as to evidence. Hunnicutt v. Peyton, 1880, 102 U.S. 333, 26 L.Ed. 113. Also the state statutes and decisions in respect of titles to real property are binding on a Federal court. Hinde v. Vattier, 1831, 5 Pet. 398, 8 L.Ed. 168; Williams v. Gaylord, 1900, 9 Cir., 102 F. 372; American Land Co. v. Zeiss, 1911, 9 Cir., 191 F. 125; Pickens v. Merriam, 1921, 9 Cir., 274 F. 1. The rule encompasses the necessity for and sufficiency of an acknowledgment of a deed. McKeen v. Delancy's Lessee, 1809, 5 Cranch 22, 3 L.Ed. 25; Berry v. Northwestern & P. Hypotheek Bank, 1898, 9 Cir., 93 F. 44. With these rules in mind we turn to the consideration of the issue as to whether plaintiff, as heir of Julia Mosher Winifred Collins, derived title to the property here involved.

For our purpose it suffices to say, as to the issues in the case, that plaintiff pleaded and proved the essential elements of an action in trespass, with one exception — her right to possession.

To show her ownership of the property plaintiff deraigned title thereto from the United States through a series of grants to her mother, Julia Winifred Mosher-Collins, the grant relied on for this lastmentioned step being dated in 1908. It was further alleged and proved that her mother died May 4, 1920, and it is claimed that plaintiff derived title as an heir of her mother.

Defendant averred and introduced evidence designed to prove, (1) title in himself; (2) that plaintiff's claim was res adjudicata; (3) that title never vested in plaintiff. Since we find, post, that title never vested in plaintiff, we need not further consider defenses (1) and (2).

Defendant's attack on the title claimed by Julia C. Collins does not challenge any link in the chain save the last — descent of title from Julia Winifred Mosher-Collins to plaintiff. It is alleged that, subsequent to the vesting of title in her (about 1908), Julia Winifred Mosher-Collins deeded the property to her husband, James Dean Collins.

Plaintiff did not allege, except inferentially, nor did she directly prove that Julia Winifred Mosher-Collins died seized of the property in question. However, a deed and a decree of distribution, based on the deed, were put in evidence, both purporting to convey title to plaintiff's mother as of April 30, 1908. In this state of the evidence plaintiff is aided by the presumption of continuity of ownership, i.e., that a status once established is presumed by law to remain until the contrary appears. Although we find no Arizona law directly on this point, the common-law rule is to the stated effect. Wigmore on Evidence, 2d Ed. § 2530, and note 1. The Arizona courts have declared the analogous presumption that authority continues until the contrary is shown. Consolidated National Bank of Tucson v. Cunningham, 1925, 28 Ariz. 518, 238 P. 332, 335.

At this juncture of the trial then a directed verdict would have been erroneous.

But over the plaintiff's objection the defendant introduced a deed conveying — on its face — Julia Mosher Collins' interest in the property. The objection was as follows: "* * * it was incompetent, irrelevant and immaterial and void on its face, it being a deed of gift by an attorney in fact of her principal's property; * * *" This objection cannot possibly be construed to mean, as urged by counsel, that no power of attorney had been proven. The phrase in the objection, "it being a deed of gift by an attorney in fact" obviously negatives such proposed construction. With this deed in evidence the directed verdict was proper unless it possesses fatal disabilities.

We shall examine the exhibit. It is in writing as required by paragraph 2049, Rev.Stats. of Ariz.Civ.Code, 1913, in effect when it was purportedly signed. Both grantor and grantee are named in the body of the instrument. The property stated to be conveyed is sufficiently described. The consideration recited is "the sum of Love and Affection to me in hand paid by my husband." A deed of gift of real estate is valid in Arizona. Kline v. Kline, 1912, 14 Ariz. 369, 128 P. 805, 808. But we must look further. Was the deed properly acknowledged?

When the deed was executed (its face shows date of April 26, 1920) the Arizona law provided: "No estate of inheritance or freehold or for a term of more than one year, in lands and tenements, shall be conveyed from one to another unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized by writing." Rev.Stat. of Ariz.Civ.Code 1913, par. 2049.

Paragraph 2053 reads: "Every deed or conveyance of real estate must be signed by the grantor and must be duly acknowledged before some officer authorized to take acknowledgments, and properly...

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    ...the authenticity of the telegram, the parties waived any objection and the telegram can be considered to be authentic. Collins v. Streitz, 95 F.2d 430, 436 (C.A.9, 1938), cert. den. 305 U.S. 608, 59 S.Ct. 67, 83 L.Ed. 387 (1938). The receipt of this telegram sent by one of the corporations ......
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