Pack v. Carter

• Decision Date: 24 May 1915
• Docket Number: 2538.
• Citation: 223 F. 638
• Parties: PACK et al. v. CARTER.
• Court: U.S. Court of Appeals — Ninth Circuit

223 F. 638

PACK et al. v. CARTER.

No. 2538.

United States Court of Appeals, Ninth Circuit.

May 24, 1915

Charles W. Slack and Joseph K. Hutchinson, both of San Francisco Cal., for appellants.

R. P Henshall, H. L. Clayberg, John B. Clayberg, and Welles Whitmore, all of San Francisco, Cal., for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

It is alleged in the complaint filed by the plaintiff in this case that he is the owner and holder of an undivided one-eighth interest in and to 175 certain placer mining claims particularly set forth and described in the complaint. The claims described in the body of the complaint are the identical claims involved in case No. 2535, 223 F. 635 C.C.A. . . ., just decided. The plaintiff alleges that he derived title thereto, by mesne conveyance, from one O. Perkins and Sylvia Perkins, his wife. The complaint is based upon an alleged notice of forfeiture, dated September 14, 1914, served upon the plaintiff's predecessor in interest by the defendants, wherein the latter claim to have expended the sum of $4,400 for assessment work on certain described claims for the year 1912, and a demand is by the alleged notice made upon the plaintiff's predecessor in interest for the payment by him to them of a contribution for such assessment work on the claims alleged to amount to the sum of $550. The plaintiff prayed for an injunction pendente lite restraining the defendants from forfeiting his interest in and to the claims in suit. The notice of forfeiture served upon the plaintiff by the defendant Pack and his successors in interest, a copy of which is attached to the complaint, designates for the claim of forfeiture 42 of the 175 mining claims in which the plaintiff claims an undivided one-eighth interest. It satisfactorily appears that there is an omission of two claims in the copy of the notice attached to the complaint as printed in the record, and that the original notice referred to 44 claims. The notice is that:

'I, the undersigned, T. W. Pack, expended during the year 1912 the sum of forty-four hundred dollars ($4,400), in amounts of one hundred dollars ($100), for labor and improvements upon each of the forty-four (44) following described placer mining claims.'

Then followed a description of 42 claims, but we assume that 44 claims were described in the original notice. This case differs from case No. 2535, just decided, in this respect: In this case the defendant Pack and his successors in interest have described in their notice 44 claims upon which they claim Pack expended $4,400 during the year 1912. It sufficiently appears that the $4,400 here claimed as an expenditure by Pack on the 44 claims for the year 1912 is part of the $5,600 claimed by Pack as having been expended by him on the 175 claims described in the notice attached to the complaint in case No. 2535, where such expenditure is claimed to have been made for the years 1911 and 1912. It appears, further, that said 175 claims included the 44 claims involved in this case. The manifest inconsistency of the notices in the two cases, which also appears by direct and positive allegations of the complaint herein, is sufficient to discredit the notice in this case, and justifies this court in holding that the proceedings initiated by Pack and his successors in interest to forfeit the interest of the plaintiff in the claims mentioned, under section 2324 of the Revised Statutes, should be suspended by a temporary injunction until the actual facts can be ascertained and the questions determined upon the merits.

But there is in the record a question of procedure which we cannot overlook. Upon the filing of the verified bill of complaint the court below issued ex parte a temporary restraining order, to continue until the hearing of the application of the plaintiff for an injunction pendente lite. The complaint was filed on December 15, 1914, and the temporary restraining order was issued on that date. On December 16, 1914, the defendants gave notice that on December 18, 1914, they would move the court for an order dissolving the temporary restraining order. This motion was in accordance with the provisions of equity rule...