Moore v. Moore

• Decision Date: 02 February 1903
• Docket Number: 802.
• Citation: 121 F. 737
• Parties: MOORE v. MOORE.
• Court: U.S. Court of Appeals — Ninth Circuit

121 F. 737

MOORE v. MOORE.

No. 802.

United States Court of Appeals, Ninth Circuit.

February 2, 1903

Arthur K. Delaney, R. W. Jennings, and George H. Pippy (L. P Shackleford, of counsel), for appellant.

Lorenzo S. B. Sawyer and Crews & Hellenthal, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

A motion is made to dismiss the appeal upon the ground, first that no assignment of errors was filed in the court below and, second, that the paper which appears in the record as an assignment of errors does not comply with the requirements of rule 11 of this court. An assignment of errors is found in the record, but there is no indorsement of a file mark thereon by the clerk. It begins with the recital, however that the appellant 'presents this assignment of errors together with his petition for appeal. ' The last paragraph of the petition for appeal recites that the appellant 'doth herewith present and file his assignment of errors together with the bond on appeal. ' The petition was filed on January 27, 1902, and on the same date an order was made that the appeal be allowed as prayed for. From these facts it is sufficiently evident that the assignment of errors and the petition for appeal were presented to the court on the same date, and were lodged with the clerk thereof. In the absence of a showing to the contrary, it will be presumed that such was the case. The failure of the clerk to indorse the assignment of errors as filed cannot defeat the appellant's appeal. Mutual Life Insurance Co.v. Phinney, 178 U.S. 327, 20 Sup.Ct. 906, 44 L.Ed. 1088. The assignment specifies as errors the refusal of the court to make certain findings which were tendered by the appellant, error in making the findings which were made, and error in the conclusions of law. We find in it no such defect as to justify a motion to dismiss the appeal. The motion will be overruled.

On the merits of the case the assignments of error challenge the findings and conclusions of the court in a suit which was brought by the appellee against the appellant for a partition of a certain tract of land consisting of about six acres, in Skaguay, Alaska. The appellee is the father of the appellant and at the time of testifying in the case was 76 years of age. The land in controversy was a portion of a 160-acre tract, which had been selected by the appellant and the appellee, and which had been occupied jointly by both, but the location whereof stood in the name of the appellant, in trust for the mutual benefit of both. The appellant contended that the whole of said six-acre tract had been set apart to him, and that his father's interest therein had been devested by the execution of certain contracts which had been made and entered into, whereby he had acknowledged the sole and exclusive right of the appellant thereto. The appellee contended that the six-acre tract had been partitioned by a verbal...