Nicholson v. Weaver

• Decision Date: 31 March 1952
• Docket Number: No. 12779.,12779.
• Citation: 194 F.2d 804
• Parties: NICHOLSON v. WEAVER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

194 F.2d 804 (1952)

NICHOLSON v. WEAVER et al.

No. 12779.

United States Court of Appeals Ninth Circuit.

February 27, 1952.

Rehearing Denied March 31, 1952.

Zeutzius & Steffes, Los Angeles, Cal., Dickerson and Dickerson, Las Vegas, Nev., for appellant.

Harry H. Austin, Las Vegas, Nev., for appellees.

Before STEPHENS and BONE, Circuit Judges, and McCORMICK, District Judge.

McCORMICK, District Judge.

Arthur H. Nicholson, a defendant in a condemnation action brought by the United States in the District Court for the District of Nevada, appeals from an "Order and Judgment" entered in such action on July 29, 1950, whereby he was denied any share in the award made in the action.

The judgment ordered that an entire award of $7000. for property taken and designated in the complaint as Parcel Eight be paid to Celia Weaver, also a defendant in the action, less $300. of such award which the court directed to be paid to Nicholson because, as the trial judge observed, Nicholson's "efforts and the efforts of his attorney contributed to the jury's verdict fixing compensation for the land here involved in the sum of $7000." The record clearly shows that the $300. allowed was not to be paid as a share of the award.

As the instant problem in the District Court and in this court relates solely to the distribution of the fund provided by the Government to pay the award of the jury for the acquisition of the "full fee simple title" to Parcel Eight, the dispute in suit is one entirely between appellant Nicholson and appellee Celia Weaver as to their rights to share in the award according to their respective interests in Parcel Eight when it was taken in eminent domain on October 16, 1944. Swanson v. United States, 9 Cir., 156 F.2d 442, 170 A.L.R. 258; Carlock v. United States, 60 App.D.C. 314, 53 F.2d 926; Phillips v. United States, 7 Cir., 151 F.2d 645.

The record reveals the following chronology of events material and essential to the consideration and determination of this appeal:

On November 29, 1921, Celia Weaver acquired Parcel Eight by patent issued to her by the United States, and recorded on June 18, 1924, in the Office of the County Recorder of Clark County, Nevada.

On October 30, 1935, Celia Weaver entered into a written lease with one Jesse D. Thomas, of Searchlight, Nevada, whereby she leased such land to him for a ten-year period commencing April 8, 1936, at a rental of $75.00 per year. The lease further provided that Thomas should have the right to purchase the property at any time during the term of the lease for the sum of $4000., and that all sums theretofore paid by lessee to lessor should be deducted from the purchase price of $4000., and considered by lessor as payments on said purchase price. The lessor also agreed not to sell the property during the term of the lease to any person except the lessee, and the lease also had the usual extension and binding clause upon the assigns of the parties that is generally found in such instruments. The lease was recorded on October 30, 1935, in the Office of the County Recorder of Clark County, Nevada.

Thomas died at some time prior to June 1, 1938, and during June, 1938, appellant Arthur H. Nicholson acquired all of the Thomas right, title and interest in and to said lease and option by written assignment from J. N. Thomas and Mildred Brodie, who claimed to be all the heirs at law of said Jesse D. Thomas, deceased. Celia Weaver gave her consent in writing to the assignment, but neither the assignment nor consent were recorded.

On October 16, 1944, when the property was taken by the United States as plaintiff in the condemnation action, the following status existed:

All the annual rental payments due under the terms of the lease had been paid to Celia Weaver. Certain improvements made upon the land had been made by appellee Celia Weaver and others by appellant Nicholson.

Although the bill of complaint in condemnation and the declaration of taking, with an accompanying deposit in the registry of $3629.60 as estimated value of the property taken, by which the "full fee simple title" to Parcel Eight was acquired by the United States, were filed on October 16, 1944, summons was issued on August 24, 1945.

Celia Weaver was served with a copy of the summons and complaint in Las Vegas, Nevada, on September 20, 1945. Her default in the action was entered on May 28, 1949, upon her failure to appear and answer within the time allowed by law.

Arthur H. Nicholson, the appellant herein, appeared and filed his answer on January 30, 1946. In his answer appellant averred Celia Weaver to be the owner of Parcel Eight and that he had an interest therein consisting of an operative leasehold and option to acquire such land and he alleged the value of the property to be $9500., and prayed that he have judgment in that amount against the United States as plaintiff.

A jury trial was had and the jury assessed the actual and market value of the property, to-wit, Parcel Eight, in entirety, at $7000. Judgment thereon was entered on June 2, 1949.

On September 22, 1949, Celia Weaver filed a "Notice of Motion for an Order directing Payment of entire Award of Parcel No. Eight to defendant Celia Weaver" with her supporting affidavit and annexed exhibits. Proper service thereof had previously been made on appellant Nicholson. On October 26, 1949, a hearing was had on said motion. Pursuant to appellant's written "Notice of Motion for the Fixing of the Time Certain...