McCarthy v. Ruddock

• Decision Date: 13 October 1930
• Docket Number: No. 6151.,6151.
• Citation: 43 F.2d 976
• Parties: McCARTHY et al. v. RUDDOCK.
• Court: U.S. Court of Appeals — Ninth Circuit

43 F.2d 976 (1930)

McCARTHY et al. v. RUDDOCK.

No. 6151.

Circuit Court of Appeals, Ninth Circuit.

October 13, 1930.

Joseph McCarthy, of Spokane, Wash., for appellants.

Peters, Powell, Evans & McLaren, Robert H. Evans, W. G. McLaren, John J. Jamison, and Robert W. Reid, all of Seattle, Wash., for appellees.

Before DIETRICH and WILBUR, Circuit Judges, and WEBSTER, District Judge.

WILBUR, Circuit Judge.

This is an action for partition of about 8,000 acres of timber land in the state of Washington. The action was transferred to the United States District Court on account of diverse citizenship of the parties. Referees were appointed by the court to make partition, and their report dividing the land into two tracts and assigning one tract to the appellants and the other to the appellees was excepted to by the appellants, but after hearing evidence thereon the court overruled the exception and confirmed and adopted the report and decreed partition in accordance therewith. The appellants assign as error the failure of the trial court to refer the matter of the partition back to the referees, because, as it was claimed, the referees, instead of acting upon the stipulation of the parties as to the evidence to be considered by them, "took into consideration certain field-notes procured from outside sources, namely, from the office of James D. Lacey & Company, and based their conclusion as to partition, in part upon the same." It is sufficient upon this assignment to say that the question as to whether or not the matter should be again referred to the referees with additional instructions was entirely within the discretion of the court, and unless there is an abuse of that sound discretion the action of the trial court is not reviewable here. The court offered to consider any evidence tending to show that the partition was unfair and evidence on that subject was introduced by both sides. This was proper in lieu of the proposed reference to the referees.

The only other assignment of error presented in appellants' brief, "that the Court erred in entering the final decree herein," is not sufficiently specific to justify separate consideration. Winterton Gum Co. v. Autosales, etc., Co. (C. C. A.) 211 F. 612; Sacramento, etc., v. Johnson (C. C. A.) 36 F.(2d) 925; Sacramento, etc., v. Zdarsky (C. C. A.) 36 F. (2d) 939. Moreover, the appellants' brief presents no argument in support thereof and thereby waived the alleged error. Rules U. S. C. C. A. 9, Rule 24, 2....