Forman v. Healey

• Decision Date: 05 June 1909
• Citation: 121 N.W. 1122,19 N.D. 116
• Court: North Dakota Supreme Court

121 N.W. 1122

19 N.D. 116

FRANK N. FORMAN v. SIMON P. HEALEY

Supreme Court of North Dakota

June 5, 1909

Appeal from District Court, Richland County, Frank P. Allen, J.

Action by Frank N. Forman against Simon P. Healey. Judgment for defendant and Plaintiff appeals. Affirmed.

Affirmed.

Ink & Wallace, for appellant.

Jurisdiction is not cured by a general appearance after special appearance to object to jurisdiction. Harkness v. Hyde, 25 L.Ed. (U. S.) 237; Milne v. Dowling, 4 L. D. 379; Chesley v. Rice, 16 L. D. 120; Ellsworth Trust Company v. Parramore, 48 C. C. A. 132; Central Grain et., Exchange v. Board of Trade, 60 C. C. A. 302.

Notice of final proof must cite adverse claimant. Reno v Cole, 15 L. D. 174; cited with approval in Andrew Davis 18 L. D. 525; Findley v. Ford, 11 L. D. 172; Tuttle v. Parkins, 9 L. D. 495.

Permission to cross-examine final proof claimant and his witnesses should be allowed. 3 L. D. 112; Langford v. Butler, 20 L. D. 76; 5 L. D. 178; Manderfield v. McKinsey, 2 L. D. 580; A. & P. R. R. Co. v. Forrester, 1 L. D 481; Vasquez v. Richardson, 10 C. L. O. 391; Sorenson v. Robinson, 3 L. D. 276; Brady v. Southern P. R. R. Co., 5 L. D. 407; United States v. Fernandez, 6 L. D. 379.

It is error for the Interior Department to disregard rules of practice. Peters v. U.S. 2 Okl. 116; U. S. v. Symonds, 30 L.Ed. 557; U. S. v. Bailey, 9 Pet. 238; U. S. v. Eliason, 16 Pet. 291; Aldrige v. Williams, 3 How. 9; Gratiot v. U.S. 4 How. 80; Ex Parte Reed, 25 L.Ed. 538; Smith v. Whitney, 29 L.Ed. 601; U. S. v. Boggs, 31 F. 337; U. S. v. Eaton, 12 L.Ed. 764.

Chas. E. Wolfe, for respondent.

A general, after a special appearance, confers jurisdiction. Miner v. Francis, 3 N.D. 549, 58 N.W. 343; Converse v. Warren, 4 Iowa 158; Ferris v. Ferris, 89 Ill. 452; Sargent v. Flaid, 90 Ind. 501; Bankers Life Assn. v. Shelton, 84 Mo.App. 634; Dyas v. Keaton, 3 Mont. 495; Boon v. Roberts, 1 Tex. 147; Tallman v. McCarty, 11 Wis. 401; Eddy v. LaFayette, 1 C. C. A. 441.

Findings of Interior Department as facts are conclusive upon the courts. U. S. v. N. P. Ry. Co., 37 C. C. A. 290; Unita Tunnel Co. v. Creede Mining Co., 57 C. C. A. 200; Bertwell v. Haines 63 P. 702; Hartwell v. Havighorst, 66 P. 337.

CARMODY, J. FISK and SPALDING, JJ., concur. MORGAN, C. J., not participating. ELLSWORTH, J. (concurring specially).

OPINION

CARMODY, J.

This action is brought by Frank N. Forman, appellant, against Simon P. Healey, respondent, to declare Healey to hold title for Forman to certain lands, described as follows, to-wit: the E. 1/2 of the S. E. 1/4 of section 35 in township 133 of range 48 W., Fargo Land District, N.D., and that he be decreed and required to transfer the same to Forman. The title to the land in question is patented from the United States government to defendant and respondent. At the commencement of the trial defendant and respondent objected to the introduction of any evidence as follows: "The defendant objects to the introduction of any evidence under the complaint in this action upon the following grounds: First, that the complaint shows upon its face that all the material matters therein alleged to have been fully and finally tried, determined and adjudicated between the same parties, with reference to the same subject matter in another and different tribunal having full jurisdiction of subject matter and parties, to-wit, the Department of the Interior of the United States Government. Second, that the complaint fails to state facts sufficient to constitute a cause of action against the defendant particularly in this, construing these portions of the complaint which, on their face, show conclusively the former adjudication mentioned in the first ground, there are no allegations of any facts constituting or tending to show any right of action in the plaintiff as against the defendant." The trial court made findings of fact and conclusions of law, and ordered judgment in favor of defendant, Simon P. Healey, dismissing the action and adjudging him to be absolute owner of the land in question. Judgment was entered accordingly, from which judgment plaintiff appealed. A review of the entire case is demanded in this court.

The facts in the case are as follows: That on the first day of May, 1896, the respondent herein tendered his homestead application to the United States Land Office at Fargo, N.D., within the jurisdiction of which land office the land in controversy then was, to enter said land as a homestead, alleging settlement thereon prior to May 1, 1896. On the 4th day of May, 1896, the appellant herein tendered his homestead application to enter said land at said land office, under the homestead laws, alleging in said application settlement thereon prior to April 1, 1896. That both parties were qualified homestead entrymen. That on October 1, 1896, pursuant to notice issued by the officers of said land office at Fargo, a hearing was had between appellant and respondent upon the question of priority of settlement upon said land. That upon said hearing the register of the local land office at Fargo decided in favor of the appellant. That thereafter an appeal was taken from said decision by the respondent herein to the Commissioner of the General Land Office at Washington, D. C., which appeal was decided in favor of respondent and against appellant. That thereafter an appeal was taken to the Secretary of the Interior from the decision of the said commissioner, and his decision was reversed, and he was directed to allow appellant, Forman, to enter the land in controversy subject to further compliance with the law. That said decision was dated February 7,, 1899. On March 17, 1899, respondent Healey, filed a motion for rehearing in said case, alleging that Forman had wholly abandoned the land since the original hearing. On April 11, 1899, the motion of said Healey for a rehearing was denied by the Secretary of the Interior, for the reason that the matter of the abandonment was not before the department when the former decision was rendered, in which decision the Secretary of the Interior used the following language: "The latter's claim (meaning Forman's) depends solely upon his prior settlement, and the department awarded him preference right of entry upon that ground. It was therefore incumbent on him to comply in good faith with the settlement laws pending the final determination of this controversy." He also used the following language: "That this action does not preclude your office (meaning the Commissioner of the General Land Office) from directing an inquiry for the purpose of determining this charge."

On the 20th day of April, 1899, the Commissioner of the General Land Office notified the register and receiver at Fargo, N.D., of the decision of the Secretary of the Interior denying the motion of respondent, Healey, for a review of the decision of February 7, 1899, and the said case was accordingly closed, to notify the parties in interest and Forman that he would be allowed thirty days within which to perfect his application to said land. That on the 27th day of April, 1899, appellant, Forman, made his homestead filing on said land at the land office at Fargo, N.D., and received from the register and receiver thereof a filing receipt and paid the fees for said filing. On the 29th day of April, 1899, the Commissioner of the General Land Office, in a letter to the register and receiver of the local land office at Fargo, N.D., in reference to the decision of the Secretary of the Interior denying the motion for review made by respondent, Healey, used the following language: "Said decision was promulgated on a blank form and your office directed to notify Forman that he would be allowed thirty days within which to perfect his application for the land therewith returned. Said action of this office is hereby recalled to the extent of allowing Forman to perfect his application for the land. In event you have not carried out the instructions of this office you will now notify said Forman that he will be allowed to apply to perfect his application, and in the event that he so does, you will order a hearing on the charge made by Healey and his affidavit is herewith returned as a basis of the same. In the event Forman has perfected his application, you will order a hearing on the charge of Healey, if you are convinced the same should be had to further the ends of justice."

That on May 8, 1899, the register and receiver of the said land office at Fargo cited both appellant and respondent to appear before them on June 20, 1899, to offer testimony touching the allegations contained in the said notice of hearing, which is in substance as follows: "On March 17, 1899, Simon P Healey having filed affidavit, fully corroborated, alleging: That he is well acquainted with the land in question and has known the same for the last 12 years; that he knows the present condition of the same; that he made a bona fide settlement upon said land on May 1, 1896, and has followed the same by residence and cultivation; that he has a house upon said land 12x16 and a barn 10x16 and nine acres of said tract under cultivation; that, since the date of said settlement, he has never abandoned said land, and has resided upon, cultivated and improved said tract ever since the said settlement; that Frank N. Forman never made settlement upon said tract since July, 1897, but resided with his family at Moselle, N.D., a distance of twenty-five miles from said tract for more than eighteen months before the filing of said affidavit, where he purchased a farm; that he has wholly abandoned whatever residence and settlement he had upon said land and has so abandoned for the period above mentioned; that he has made no improvements upon said land, except the...