Martin v. White

• Decision Date: 20 June 1906
• Docket Number: 1,292.
• Citation: 146 F. 461
• Parties: MARTIN et al. v. WHITE.
• Court: U.S. Court of Appeals — Ninth Circuit

146 F. 461

MARTIN et al. v. WHITE.

No. 1,292.

United States Court of Appeals, Ninth Circuit.

June 20, 1906

Morton E. Stevens, Claypool, Kellum & Cowles, (Edward E. Cushman, of counsel), for plaintiffs in error.

This is an action of ejectment brought by the plaintiff (defendant in error) Andrew White, by his guardian H. M. Badger, against the defendants (plaintiffs in error) to recover possession of the premises described in the complaint, being two lots adjoining, end to end, comprising one plot of ground together with improvements thereon. The complaint alleged that on May 9, 1905, H. M. Badger was duly appointed by the commissioner and ex officio probate judge of the Fairbanks Precinct, in the district of Alaska, as the guardian of the person and property of the said Andrew White, the said Andrew White having been found at the same time by the court to be an insane person, and owning real property in said precinct and that said Andrew White occupied the same as his residence, and had been in possession at all times since except as such possession has been interfered with by the unlawful conduct of the plaintiffs in error, and that he is now entitled to the possession of the property; that prior to the bringing of this action the plaintiffs in error wrongfully entered within the inclosure, and broke into the houses, and ousted him from the possession of the property, and have since retained the possession of the property. A demurrer was interposed to the complaint upon the ground that the plaintiff had no legal capacity to bring the suit, and that the complaint does not state facts sufficient to constitute a cause of action against the plaintiffs in error, or any of them. This demurrer was overruled, and the plaintiffs in error filed an answer denying any legal appointment of Badger as the guardian of said White, and denied the right of White to the possession of said real property. They further affirmatively answered that they were in the lawful and peaceable possession of the premises described in the complaint; that the petition for the appointment of Badger as guardian of White was insufficient to warrant his appointment as guardian; that no notice was given of the pendency of the proceedings of his appointment as guardian either to White or any other person; that without such notice the commissioner of Fairbanks Precinct, without authority of law, held a hearing in such proceedings, wherein it was disclosed that White was not a resident of Fairbanks Precinct, and the commissioner was without jurisdiction to entertain the application; that the said White never occupied the premises described, and had wholly abandoned the whole of said premises. Divers objections and exceptions were taken to certain rulings of the court as to the admission of evidence and instructions to the jury. The jury judgment was rendered by the court. At the trial the proceedings had before the United States Commissioner, were admitted in evidence, and it appears therefrom that on April 17, 1905, one John A. Long, a friend and acquaintance of Andrew White, presented a petition before said commissioner, showing the following state of facts: '(1) That prior to July, 1904, the said Andrew White came to Fairbanks, and became a permanent resident of the town, and in pursuance thereof took up lot No. 1, block No. 2 (the property and premises described in the complaint); that the improvements put upon the said lot by said Andrew White were of the value of at least fifteen hundred dollars, and the said ground is now worth at least one thousand dollars. (2) That this petitioner in the year of 1904 owned a parcel of ground in the immediate neighborhood of the lot of the said White which he cultivated as a garden during the summer of that year, and in that way became personally acquainted with the said White, and somewhat with his business affairs, and especially with his mental peculiarities. (3) Your petitioner further shows that the said White was a skillful carpenter, and although there was plenty of work for carpenters at Fairbanks, complained that there was none, and expressed his purpose of building a boat, and going down the river to find work, which he did in the latter part of July, 1904, leaving his cabins locked up, with his extra clothing and household utensils therein (presumably, at least,) leaving no one in charge of such property, or with any authority in connection therewith. That the said White has never communicated with any one in Fairbanks, as far as petitioner is aware, nor has any word come back from him, direct or indirect, except, perhaps, a vague rumor that he had been drowned at sea. That from petitioner's conversation and acquaintance with said White, from his actions, and from what could be learned of him from others, petitioner is of the opinion that said White was insane when he left Fairbanks in July, 1904, and is in that condition of mind at this time. ' It is further alleged in this petition that since the disappearance of the said White the plaintiffs in error had taken possession of the property, and were occupying and making preparations to improve the same, and prayed 'the court to order a hearing after such notice as may be deemed sufficient, and after such hearing that the court appoint some suitable person as guardian of the said Andrew White, if it finds that he be indeed insane, to the end that his property may be looked after and his interests conserved.'

On reading the petition, the commissioner, on April 28, 1905, 'ordered that May 9, 1905, at 10 o'clock a.m., be fixed as the time, and the courthouse in Fairbanks, as the place, for the hearing of said petition, and the said petitioner is ordered to give public notice of the time and place thereof by a notice published in the Fairbanks Semiweekly News once in its issue of April 29, 1905, and by posting a similar notice in three public places in the town of Fairbanks. ' On May 9, 1905, upon proof that such notice had been published and posted as directed by said order, it was 'ordered, adjudged, and decreed that H. M. Badger be, and he is hereby, appointed guardian of the person and property of the said Andrew White to the extent as to property that the said Andrew White may own property in the Fairbanks recording district, ' and be required to give bonds.

The following provisions of the Code of Alaska have been cited by counsel, and are referred to in the opinion of the court.

Under the miscellaneous provisions respecting the courts and judicial officers, in chapter 71:

'Sec. 723. When jurisdiction is by any law of the United States conferred on a court or judicial officer, all the means to carry it into effect are also given; and the exercise of the jurisdiction, if the course of proceeding be not specially pointed out by this Code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.'

Under chapter 88 of 'Guardians and Wards':

'Sec. 888. The commissioner for each precinct, when it shall appear to him necessary or convenient, may appoint guardians to minors and others being inhabitants or residents in such precinct, and also such as shall reside without the district and have any estate within the same.'

'Sec. 895. Commissioners in their respective precincts shall have power to appoint guardians to take care, custody, and management of the estates, real and personal, of all insane persons, idiots, and all who are incapable of conducting their own affairs, and the maintenance of their families and the education of their children.

'Sec. 896. When the relatives or friends of any insane person, or any other persons inhabitants of the precinct in which such insane person resides, shall apply to the commissioner by petition in writing to have a guardian appointed for him, the commissioner shall cause notice to be given to the supposed insane person of the time and place appointed for hearing the case, not less than ten days before the time so appointed; and if, after a full hearing, it shall appear to the commissioner that the person in question is incapable of taking care of himself, the commissioner shall appoint a guardian of his person and estate, with the powers and duties hereinafter specified.'

'Sec. 911. When any minor or other person likely to be put under guardianship according to the provisions of this chapter shall reside without the district and shall have any estate therein, any friend of such person, or any one interested in his estate, in expectancy or otherwise, may apply to the commissioner of any precinct in which there may be any estate of such absent person, and after notice to all persons interested, to be given in such manner as the commissioner shall order, and after a full hearing and examination, if it shall appear proper the commissioner may appoint a guardian for such absent person.

'Sec. 912. Every guardian appointed according to the provisions of the preceding section shall have the same powers and duties with respect to any estate of the ward that may be found within the district, and also with respect to the person of the ward if he shall come to reside therein, as are prescribed to any other guardian appointed by force of this chapter.'

Before GILBERT, and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge (after making the foregoing statement, ).

Under the foregoing state of facts, did the commissioner have any jurisdiction to make an order appointing Badger guardian of said White? Did the...