Hulsebus v. McConnell, Civil 3534

• Decision Date: 12 November 1935
• Docket Number: Civil 3534
• Citation: 46 Ariz. 371,51 P.2d 259
• Parties: JOHN H. HULSEBUS, Appellant, v. RUTH ESTHER McCONNELL, Formerly RUTH ESTHER VOSHALL, Appellee
• Court: Arizona Supreme Court

51 P.2d 259

46 Ariz. 371

JOHN H. HULSEBUS, Appellant, v. RUTH ESTHER McCONNELL, Formerly RUTH ESTHER VOSHALL, Appellee

Civil No. 3534

Supreme Court of Arizona

November 12, 1935

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.

Messrs Hummel & Hummel, for Appellant.

Mrs Rose S. Silver, Mr. Joseph H. Shifman and Mr. Jacob Morgan for Appellee.

OPINION

LOCKWOOD, C.J.

Ruth Esther McConnell, hereinafter called plaintiff, filed a suit in ejectment in the superior court of Pima county against John H. Hulsebus, hereinafter called defendant. After various preliminary pleas, demurrers, and motions were disposed of the case was heard on the merits before the court and judgment was finally rendered in favor of plaintiff, whereupon this appeal was taken.

There are some eight assignments of error which we shall consider as seems advisable. The evidence presented to the trial court in support of the respective claims of plaintiff and defendant is not all before us. We are therefore compelled to assume that it was sufficient to support the judgment of the court, and are confined to reviewing the assignments which raise questions of law in regard to the sufficiency of the pleadings. Ensign v. Koyk, 31 Ariz. 1, 250 P. 246; Wooster v. Scorse, 16 Ariz. 11, 140 P. 819. In order that we may do this, it is necessary to state briefly of what these pleadings consisted.

The complaint alleges, in substance, as follows:

"That on the 5th day of May, 1933, the plaintiff was lawfully in possession of, and had title to, as a homestead entry-woman under the laws of the United States of America, the following described real property, situate and being in the County of Pima, State of Arizona, to-wit: The Southeast One Quarter (S. E. 1/4) of the Northwest One Quarter (N.W. 1/4) of Section Three (3), Township Thirteen (13), South, Range Twelve (12) East, G. & S.R.M.

"That ever since that date plaintiff has been, and now is, entitled to the possession of the said described land and premises, and that ever since said date she has held, and now holds, title thereto as such homestead entry-woman; that from and after said date plaintiff was entitled to the possession of said land and premises.

"That on the said 5thday of May, 1933, and while plaintiff was in such possession of, and entitled to the possession of, and had title to, the said described land and premises as such entry-woman, all as aforesaid, defendant wrongfully and unlawfully detained possession of a portion of said land and premises with the improvements thereon and ousted the plaintiff therefrom, and now wrongfully and unlawfully withholds the possession thereof from plaintiff, to her damage, in the sum of Two Hundred Fifty Dollars & no/100 ($250.00)."

To this complaint defendant filed a plea in abatement, a general demurrer, a general denial, and a cross-complaint. The plea was stricken on motion, and this action of the trial court is the basis of the first assignment of error. The vital portion of the plea reads as follows:

"That the tract of land referred to is domain of the United States, subject to the right of Entry under the Agricultural Land Laws of the United States, and the right of preference or priority to Entry, between the plaintiff and this defendant is now pending in the Department of the Interior."

This is apparently an attempt to set up a prior suit pending. It is the theory of defendant that when a contest over the right of entry of government land is pending in the land office, the state courts have no jurisdiction over the land or any claims to it, but must await a final determination of the contest in the land office. In support of this, he cites the case of Northern Pacific Ry. Co. v. McComas, 250 U.S. 387, 39 S.Ct. 546, 548, 63 L.Ed. 1049. Plaintiff, on the other hand, insists that the case cited by defendant supports her contention that notwithstanding there is a contest over the right of entry in the land office, the state courts have full jurisdiction to determine the right of possession of the land, pending the decision in the land office. We are of the opinion that the case cited settles this particular issue in favor of plaintiff. We quote the following language therefrom:

"It is settled that in such a situation the courts may not take up the adjudication of the pending claims, but must await the decision of the land officers and the issue of patents in regular course. [Citing cases.] There is, however, a related jurisdiction which the courts may exercise pending the final action of those officers; they may protect a possession lawfully acquired or restore one wrongfully interrupted, for that is a matter which is not confided to the Land Department and may be dealt with by the...