Hinchman v. Ripinsky

• Decision Date: 13 January 1913
• Docket Number: 1,993,2,015,,2,045.
• Citation: 202 F. 625
• Parties: HINCHMAN et al. v. RIPINSKY. RIPINSKY v. HINCHMAN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

202 F. 625

HINCHMAN et al. v. RIPINSKY.

RIPINSKY v. HINCHMAN et al.

Nos. 1,993, 2,015,, 2,045.

United States Court of Appeals, Ninth Circuit.

January 13, 1913

Lewis P. Shackleford, of Juneau, Alaska, and Alfred Sutro, of San Francisco, Cal. (Albert Fink, of San Francisco, Cal., of counsel), for plaintiffs.

R. W Jennings, of Baltimore, Md., and J. H. Cobb, of Juneau Alaska, for defendant.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

This is the second appeal. The cause was reversed on the first, and remanded for such further proceedings as to the trial court might seem proper. The District Court allowed an amendment of the complaint in such manner as to show that the suit was instituted in support of an adverse claim, entered in the Land Office, to the application of the defendant, Solomon Ripinsky, for a homestead patent in pursuance of survey No 573. A new trial was had, resulting in a decree that plaintiffs take nothing by the bill of complaint; that defendant is the owner of the following parcels of land comprised by survey No. 573, namely, a parcel 100x150 feet in area in the extreme east end of said survey, and parcel No. 5, in block 1, according to a plat made by Walter Fogelstrom; and that Ripinsky, the defendant, recover of and from the plaintiffs his costs and disbursements. From this decree, both plaintiffs and defendant prosecute an appeal. The appeal of Ripinsky is known on the docket here as No. 2,015, and that of Hinchman et al. as No. 2,045. When the cause was reversed on the prior appeal, costs were awarded to Ripinsky, the defendant and appellant. The amount of these costs was taxed at $1,436.95. While the cause was on appeal, the plaintiffs, who were appellees here, issued execution and enforced payment by Ripinsky of the costs and disbursements awarded against him in the trial court, amounting to $456.75. When the mandate of this court went down, counsel for Ripinsky moved the District Court that, in entering its decree upon the mandate, it include therein a decree also against the plaintiffs for restitution of the costs collected under execution upon the reversed decree, which motion was allowed, and decree entered accordingly. The plaintiffs have filed an appeal from this decree also. Its docket number here is 1,993. All these appeals have been consolidated, and were heard together. It will be convenient to dispose of the last-named appeal first, and then the other two will be disposed of as one cause.

The costs on appeal were awarded by this court. Such award constituted part and parcel of its judgment in reversing the cause brought up. It became a finality, and when the cause went down the court below was bound to observe the injunctions of the mandate. The judgment was binding on the court below, and it had no power or authority to revise or modify it, or to do otherwise than to enter it as the judgment of that court. From such judgment, there was no second appeal to this court. It is almost axiomatic that none of the questions before the court and determined on writ of error or appeal can be heard or re-examined if the case be again brought up. To allow this would lead to endless litigation, and the end of the law could never be reached. 2 Ency. U.S. S.Ct. Reports, p. 412, and notes, pp. 412, 413, 414. In this case the costs on the appeal were a matter determined by this court, and a second appeal as to these falls clearly within the principle stated, and is not allowable.

While it is true that appellant in the first appeal, by his objection to the first amended complaint, as appears now from the record brought here in case No. 2,045, was instrumental in causing the pleadings to be so amended as to present a simple cause for quieting title, and not one in aid of an adverse claim, yet it was within the privilege of the appellees to bring up that record by an amendment to the abstract, and in that way the entire cause could then have been fully presented. It is incumbent on the appellant to bring up so much of the record only, not omitting the evidence, of course, as will present the matters he relies upon for error. If the appellee conceives there is error against him in the record, or such action had as will cure the errors relied upon by appellant, he should bring it to the attention of the court by an amendment of the abstract. Not observing this principle, he alone is to blame, and not the appellant.

As it respects the restitution awarded by the District Court, that was a relief very properly granted, under the condition of the record at that time. The decree of the trial court stood reversed and annulled, and the appellant was entitled to have that returned to him which was taken away by an erroneous judgment. Northwestern Fuel Co. v. Brock, 139 U.S. 216, 220, 11 Sup.Ct. 523, 35 L.Ed. 151, is decisive of the question. Cause No. 1,993 should therefore be affirmed, with costs against the appellants.

The statute under which this proceeding is now pending is that of May 14, 1898 (30 Stat. 409, 413, 414, c. 299 (U.S. Comp. St. 1901, p. 1412)), extending the homestead laws of the United States to the territory of Alaska, as amended by the act of March 3, 1903 (32 Stat. 1028, 1029, c. 1002 (U.S. Comp. St. Supp. 1911, p. 606)). By that statute, when application for patent is made under the homestead law, and notice given, any person having an adverse interest in or claim to the land for which patent is sought may, within a time fixed by the act, file an adverse claim setting forth the nature and extent thereof, and within 30 days thereafter may begin an action to quiet title in a court of competent jurisdiction in the district of Alaska, after which it is declared:

'No patent shall issue for such claim until the final adjudication of the rights of the parties, and such patent shall then be issued in conformity with the final decree of the court.'

The statute has in purview, no doubt, adverse claimants who are seeking title from the government to the same parcel of government land, and it is incumbent upon the contestants to show by what right they respectively claim superiority each over his adversary. The final judgment of the court will determine the respective rights of the parties, and the final patent is made dependent upon the result of such adjudication. The statute has its prototype in the statutes providing for the acquisition of mineral lands. Section 2326, Revised Statutes (U.S. Comp. St. 1901, p. 1430), provides for an action of the kind in case of contest between applicants for the same tract of mineral land. This section was amended March 3, 1881 (21 Stat. 505, c. 140), so that if, in any action brought in pursuance thereof, the title to the ground in controversy be not established by either party, the costs shall not be allowed to either party. While there exists no such amendment or provision with respect to the statute under which this suit is instituted, yet it would seem to be the reasonable course under like conditions. The reference to the courts of the controversy under the statute is in aid of the Land Department, and such form of suit or action may be adopted as would seem most appropriate to meet the exigencies of the case. Perego v. Dodge, 163 U.S. 160, 164, 16 Sup.Ct. 971, 41 L.Ed. 113.

In the case at bar the defendant, Ripinsky, is claiming by right of a homestead entry, with possession dating back to about December 2, 1897, derived from Sarah Dickinson. On the other hand, complainants are claiming possession with a view to obtaining title from the government under the town-site statutes. Lands in Alaska may be entered for town-site purposes, for the several use and benefit of the occupants, by such trustee or trustees as may be named by the Secretary of the Interior for that purpose, such entries to be made under the provisions of section 2387 of the Revised Statutes (U.S. Comp. St. 1901, p. 1457) as near as may be, and, when such entries shall have been made, it is made the duty of the Secretary of the Interior to provide for the proper execution of the trust. 26 Stat. 1099, 1 Fed.Stat.Ann. 53. Section 2387, Revised Statutes, provides that whenever any portion of the public lands has been or may be settled upon and occupied as a town site, not subject to entry under the agricultural pre-emption laws, the corporate authorities, if the town be incorporated, and, if not, the county judge, are empowered to enter the land settled upon and occupied, in trust, for the several use and benefit of the occupants, according to their respective interests. Under these statutes, the initiatory steps to be taken by citizens in establishing a town site upon public land are to settle upon and occupy the land for town-site purposes. When so occupied, they may have the same entered in the Land Office for such purposes, through a trustee or trustees named by the Secretary of the Interior, by whom it is entered in trust for the settlers and occupants.

The plaintiffs by their bill of complaint aver settlement and occupancy, dating from December, 1897, and prior in time to the occupancy of the defendant, of the larger portion of the lands embraced in defendant's homestead survey No. 573, and that they have applied to the proper officers in the United States Land Office for a survey of such lands for the purpose of entering the same as a town site under the laws of the United States.

The question is again presented here, as it was on the first appeal, whether the plaintiffs were entitled to join in a bill of complaint in aid of the contest against the issuance of a patent to the defendant under his homestead application therefor. Ripinsky v. Hinchman, 181 F. 786, 105 C.C.A. 462. As the cause was then presented, which was...