Pueblo de Taos v. Archuleta

• Decision Date: 10 April 1933
• Docket Number: No. 645,732.,645
• Citation: 64 F.2d 807
• Parties: PUEBLO DE TAOS v. ARCHULETA et al. SAME v. ANAYA et al. (VAN VECHTEN, Intervener).
• Court: U.S. Court of Appeals — Tenth Circuit

64 F.2d 807 (1933)

PUEBLO DE TAOS v. ARCHULETA et al.

SAME v. ANAYA et al. (VAN VECHTEN, Intervener).

Nos. 645, 732.

Circuit Court of Appeals, Tenth Circuit.

April 10, 1933.

COPYRIGHT MATERIAL OMITTED

R. H. Hanna and William A. Brophy, both of Albuquerque, N. M. (Fred E. Wilson, of Albuquerque, N. M., on the brief), for appellant.

Carl H. Gilbert, of Santa Fé, N. M. (M. W. Hamilton, of Santa Fé, N. M., on the brief), amici curiæ, and for appellee Van Vechten.

Before COTTERAL and McDERMOTT, Circuit Judges, and JOHNSON, District Judge.

McDERMOTT, Circuit Judge.

These cases present the epilogue of the controversy between the Pueblo of Taos and the non-Indian settlers who claim title to many tracts of land formerly owned by the Pueblo in communal title. The Pueblo Lands Act (43 Stat. 636 25 USCA § 331 note) provided elaborate machinery for the determination of the many disputes that arose over Pueblo titles after the decision of the Sandoval and Candelaria Cases (231 U. S. 28, 34 S. Ct. 1, 58 L. Ed. 107; 271 U. S. 432, 46 S. Ct. 561, 70 L. Ed. 1023). The Pueblo Lands Board was charged with the duty of investigating such disputes and reporting to the court the titles which it found to be still in the Pueblo; whereupon, the Act provided that a suit to quiet such titles in the Pueblo should be brought in the federal court of New Mexico, in which the adverse claimants might be heard. Such a suit as to lands claimed by the Pueblo of Taos, involving 78 tracts, was decided by this Court in United States v. Wooten, 40 F.(2d) 882.

That litigation did not involve lands which the Board decided were owned by the settlers. The Act provides:

"Nothing in this Act contained shall be construed to impair or destroy any existing right of the Pueblo Indians of New Mexico to assert and maintain unaffected by the provisions of this Act their title and right to any land by original proceedings, either in law or equity, in any court of competent jurisdiction and any such right may be asserted at any time prior to the filing of the field notes and plats as provided in section 13 hereof, and jurisdiction with respect to any such original proceedings is hereby conferred upon the United States District Court for the District of New Mexico with right of review as in other cases." 43 Stat. 637, § 4 (25 USCA § 331 note).

In 1929 the Pueblo of Taos brought a suit to quiet its title to 27 tracts of land which the Board decided belonged to settlers. That litigation was decided by this Court in Pueblo de Taos v. Gusdorf, 50 F.(2d) 721.

The Act provides for compensation to be paid by the United States to the Pueblo in event the Pueblo title was lost through the fault of the United States, and provides for a judicial review of the amount of such compensation. Pueblo de San Juan v. United States (C. C. A. 10) 47 F.(2d) 446, certiorari denied, 284 U. S. 626, 52 S. Ct. 11, 76 L. Ed. 533. The Act directs the Secretary of the Interior to file field notes of the lands to which the Pueblo title has been extinguished, which field notes become the muniment of the settler's title. Such field notes may not be filed while the title is claimed for the Pueblo in any pending court proceeding.

Appeal in No. 645.

Against this background, the first of the two cases here involved was brought. It is an action in ejectment against some 250 settlers on land formerly owned by the Pueblo, who claim adversely to it. It does not involve the titles which were adjudicated in the Wooten and Pueblo de Taos Cases above cited. The action was filed on December 27, 1930. Although the mere pendency of the action prevented the filing of the field notes, and clouded the titles of the defendants, no effort was made to serve the defendants or any of them, either personally or by substituted service, and none of the defendants made any appearance in the court below. More than a year elapsed, and on January 4, 1932, the trial court entered the following order:

"It appearing to the court that more than one year has elapsed since the filing of this action; that no process has been served herein upon any of the defendants; that no attempt has been made to obtain such service and that no proceedings have been taken herein looking toward a disposition of this cause.

"And it further appearing to the court that the pendency of this cause has prevented the Secretary of the Interior from filing the field notes and plat of the Pueblo of Taos Land Grant in the office of the Surveyor General of New Mexico, as required by Section 13 `An Act to Quiet the Title to Lands Within Pueblo Indian Land Grants and for Other Purposes,' approved June 7, 1924, and has thereby worked an undue hardship upon the owners of lands within said grant;

"Now Therefore, upon the regular call of the calendar of this court, it is Ordered that this cause be, and it hereby is dismissed with prejudice for want of prosecution pursuant to rule XVI of this court."

Rule XVI referred to is of long standing in that court and its validity is not and cannot be challenged. It reads:

"Cases which have been pending in this court for more than one year without any proceeding having been taken therein may be dismissed as of course, for want of prosecution, by the court on its own motion at a call of the calendar. Such cases may also be dismissed for want of prosecution at any time on motion by any party upon notice to the other parties."

Counsel for appellant on the same day the first case was dismissed, refiled it with additional defendants, the second case undertaking again to litigate the titles finally adjudicated in the cases heretofore decided by this Court. Having refiled the case, appellant then moved that the court strike the words "with prejudice" from the order dismissing the first case. The trial court denied the motion, and the first appeal is from that ruling. The propriety of dismissing the case for want of prosecution is not challenged; the objection is to the dismissal "with prejudice."

The appeal was allowed on January 23, 1932, during the term at which the order appealed from was entered. There being no adverse parties in the court below, there was no party to the suit upon whom citation could be served. Citation was issued to an attorney acting as amicus curiæ, by direction of the court; service was acknowledged by such attorney, which was his first appearance in the cause. It is not contended that he represents any parties to the cause, or is more than the name implies, a friend of the court. Such service does not of course hail any of the defendants into this court; nor have any of the defendants appeared in this court. It is asserted that where the appeal was taken in open court, and in term time, service of citation is unnecessary. Hewitt v. Filbert, 116 U. S. 142, 6 S. Ct. 319, 29 L. Ed. 581; Richardson v. Green, 130 U. S. 104, 115, 9 S. Ct. 443, 32 L. Ed. 872; 8 Hughes Fed. Pr. § 5482. It is not clear that the appeal here was taken in open court, although it was taken in term time; nor is it clear that the appeal was perfected in term time; but assuming it was, the rule cannot avail here, for it rests upon the presumption that parties are constructively present during the entire term, and there can be no such presumption as to defendants who are not served and who make no appearance.

In Jacobs v. George, 150 U. S. 415, 14 S. Ct. 159, 160, 37 L. Ed. 1127, the Supreme Court dismissed an appeal where there was no citation served on appellee, and no entry of appearance by him. These rules were laid down:

"It must be regarded as settled that: (1) Where an appeal is allowed in open court, and perfected during the term at which the decree or judgment appealed from was rendered, no citation is necessary. (2) Where the appeal is allowed at the term of the decree or judgment, but not perfected until after the term, a citation is necessary to bring in the parties; but if the appeal be docketed here at our next ensuing term, or the record reaches the clerk's hands seasonably for that term, and legal excuse exists for lack of docketing, a citation may be issued by leave of this court, although the time for taking the appeal has elapsed. (3) Where the appeal is allowed at a term subsequent to that of the decree or judgment, a citation is necessary, but may be issued properly returnable, even after the expiration of the time for taking the appeal, if the allowance of the appeal were before. (4) But a citation is one of the necessary elements of an appeal taken after the term, and if it is not issued and served before the end of the next ensuing term of this court, and not waived, the appeal becomes inoperative."

It appears therefore that this court has no jurisdiction of this appeal. Nor can we now permit citation to issue, for application for an alias citation was not made before the close of the next succeeding term of this court. Osage Oil & Ref. Co. v. Mulber Oil Co. (C. C. A. 10) 38 F.(2d) 396. It is urged that this ruling leaves a plaintiff helpless if a trial court should arbitrarily dismiss a petition before he has had opportunity to get service on the defendants. Not so; there is a remedy by mandamus if a trial court should adopt such summary tactics. In re Skinner & Eddy Corp., 265 U. S. 86, 44 S. Ct. 446, 68 L. Ed. 912. No such case is presented here.

There is no need to speculate as to the interesting suggestion that this court cannot exercise jurisdiction over parties who were not parties in the court below. State v. Holt, 34 Okl. 314, 125 P. 460. Appellant has so conducted its case, here and in the court below, that it has no adversaries in either court. Lacking any jurisdiction over the appellees, the appeal in No. 645 is dismissed.

Appeal in No. 732.

The appeal in No. 732 presents an entirely different question. On the same day the trial court dismissed the first case for want of prosecution, the action here involved was filed; it is the same action as the one dismissed, with some...