Nome & Sinook Co. v. Ames Mercantile Co.

• Decision Date: 22 May 1911
• Docket Number: 1,906.
• Citation: 187 F. 928
• Parties: NOME & SINOOK CO. v. AMES MERCANTILE CO.
• Court: U.S. Court of Appeals — Ninth Circuit

187 F. 928

NOME & SINOOK CO. v. AMES MERCANTILE CO.

No. 1,906.

United States Court of Appeals, Ninth Circuit.

May 22, 1911

Albert Fink, F. E. Fuller, G. J. Lomen, and Thomas R. White, for plaintiff in error.

James W. Bell, for defendant in error.

Before GILBERT and MORROW, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

This cause is here on a writ of error from the judgment of the trial court rendered on the pleadings.

The first question to be disposed of arises upon defendant's motion to dismiss the writ of error. The ground assigned for the motion is that the citation is not made returnable within 30 days, as required by section 5, rule 14, of this court (150 F. xxix, 79 C.C.A. xxix); the same having been made returnable within 60 days. It may be premised that the citation is not jurisdictional; it being intended only for the purpose of notice and may be waived, or substituted by proof of other equivalent notice. See Farmers' Loan &amp Trust Co. v. Chicago & N.P.R.R. co., 73 F. 314, 19 C.C.A. 477, and cases there cited.

Not being jurisdictional, if defective, a new citation may be taken out if necessary (Shute v. Keyser, 149 U.S 649, 13 Sup.Ct. 960, 37 L.Ed. 884); and the mere fact that a citation is not issued until after the time limited for taking the appeal has expired does not defeat the jurisdiction of the appellate court. Berliner Gramophone Co. v. Seaman, 108 F. 714, 47 C.C.A. 630. So it has been held by the Supreme Court that, where a citation was served and made returnable less than 30 days after writ of error granted, it was not sufficient ground upon which to dismiss the writ. Segrist v. Crabtree, 127 U.S. 773, 8 Sup.Ct. 1394, 32 L.Ed. 223. If such a citation is sufficient by how much the greater reason is a citation made returnable in 60 days ample for the purpose of notice to the defendant in error. No question is made as to the time of service. The motion to dismiss will therefore be denied.

The action is one in ejectment. The amended complaint shows the plaintiff therein named, the Nome-Sinook Mining Company, is a Delaware corporation, and the defendant a California corporation; that plaintiff is the owner of certain real property situate in the Cape Nome mining district, Alaska and is entitled to possession by virtue of location, pre-emption, purchase, and actual occupation and working of a placer mining claim, which the defendant wrongfully withholds. The defendant answered, denying every allegation of the complaint except the incorporation of the defendant company, and setting up several further and separate answers and defenses, parts of which were stricken out on motion. The plaintiff replied. Some time thereafter the defendant filed a supplemental answer, setting up two separate defenses, the latter of which is, in effect, that the plaintiff company was not then an incorporation by reason of having been dissolved by proclamation of the Governor of the state of Delaware on account of the failure to pay certain taxes and assessments accruing by virtue of the laws of the state. On demurrer of plaintiff, the first separate answer and defense was stricken out, but the latter was permitted to stand. There days after the filing of the supplemental answer, the Nome & Sinook Company moved the court that it be substituted for the original plaintiff, based upon the affidavit of its attorney, Mr. F. E. Fuller, that said company was a corporation existing under and by virtue of the laws of the state of Maine, and that since the commencement of the action the plaintiff company sold and transferred to said Nome & Sinook Company the premises, the recovery whereof is sought in the action. The record does not show that this motion was acted upon, except as reference is made thereto in the final judgment. Thereafter, on September 24, 1909, the defendant filed a second supplemental answer. A motion was interposed the next day to strike the answer. The judgment complained of was entered of date October 23, 1909, and is as follows:

'The above-entitled case having come on regularly for trial on the 24th day of September, 1909, before the above-entitled court, Messrs. F. E. Fuller and G. J. lomen, Esqs., appearing for plaintiff, and James W. Bell, Esq., appearing for the defendant, and the plaintiff having moved to strike a second supplemental answer theretofore filed by the defendant and after argument of counsel, and the court being fully advised, said motion to strike was granted, and thereupon defendant moved for permission to refile the said second supplemental answer excepting the last allegation therein set forth, said supplemental answer setting out the nature of the estate in the premises claimed by the defendant and its successor in interest, the Alaska Mercantile Company, and, after argument of counsel and the court being fully advised, the said motion was granted, and thereupon the defendant moved for judgment on the pleadings, and it appearing to the court that the defendant served and filed a supplemental answer on the 15th day of July, 1905, alleging that the charter of the Nome-Sinook Mining Company of Delaware had been repealed, and that the said Nome-Sinook Mining Company's right to sue had thereupon and long prior to the time of filing said supplemental answer, by reason of the repeal of said charter, abated, and it further appearing to the court that the said plaintiff was allowed on motion to substitute as party plaintiff the Nome & Sinook Company as the successor in interest of the Nome-Sinook Mining Company, but that the said Nome & Sinook Company had never filed any supplemental complaint setting up any allegations or facts showing the right of the Nome & Sinook Company to continue litigation theretofore instituted by the Nome-Sinook Mining Company, and there being nothing before the court to indicate that the said Nome & Sinook Company had a right to continue the litigation theretofore instituted by the Nome-Sinook Mining Company, and the said defendant having moved the court that said order of substitution be revoked and the court being fully advised, thereupon granted said motion to

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