Schodde v. United States

• Citation: 69 F.2d 866
• Decision Date: 12 March 1934
• Docket Number: No. 7171.,7171.
• Parties: SCHODDE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

69 F.2d 866 (1934)

SCHODDE et al. v. UNITED STATES.

No. 7171.

Circuit Court of Appeals, Ninth Circuit.

March 12, 1934.

James R. Bothwell, of Twin Falls, Idaho, for appellants.

John A. Carver, U. S. Atty., and Frank Griffin and E. H. Casterlin, Asst. U. S. Attys., all of Boise, Idaho, and B. E. Stoutemyer, Dist. Counsel, U. S. Reclamation Service, of Portland, Or.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

GARRECHT, Circuit Judge.

On June 13, 1918, the United States leased certain public lands, situated in Idaho, to "Geo. H. Schodde, W. W. Custer, Louis Nelson, C. H. Matson and Claude Myers, doing business under the firm name and style of Lincoln and Minidoka County Cattle and Horse Growers' Association, together with such owners of horses and cattle as now are or may hereafter become members of said association." The lease was to run for a period of 3 years at an annual rental of $1,855.

Action was commenced in the District Court of the United States for the District of Idaho on September 22, 1920, by the United States to recover from the parties heretofore named, rent in the sum of $1,855.00 alleged to be due under the lease on December 1, 1919. By the complaint the above-named were designated as copartners, but in their answer this was denied, and it was alleged that they were members of a "voluntary association" consisting of fifteen members instead of the five named, and prayed that all of the members of the said association be made parties to the action. This accompanied a general denial of all the allegations of the complaint, together with other affirmative defensive matter, the gist of which was that the government failed to protect this pasturage land from being used by sheep.

Plaintiff's motion for judgment on the pleadings was sustained and judgment entered March 7, 1921, in favor of plaintiff and against the said five defendants.

The judgment was never appealed from nor set aside.

In October of 1929 the United States marshal levied upon certain money of W. W. Custer, one of the defendants in the action above noted. Custer instituted a suit to enjoin this action of the marshal, but upon motion of the marshal the petition for injunction was dismissed. The ground upon which the injunction was sought was that under the statutes of Idaho execution may not issue after five years have elapsed from entry of judgment. Custer appealed to this court, which affirmed the order of the District Court. Custer v. McCutcheon, 41 F. (2d) 354. Petition for writ of certiorari made to the Supreme Court of the United States was granted, and, after hearing, the judgments of the Circuit Court of Appeals and of the District Court were reversed (Id., 283 U. S. 514, 51 S. Ct. 530, 75 L. Ed. 1239) upon the ground that the state statutory period within which execution may issue upon a judgment had elapsed, and that under Rev. St. § 916, the United States (28 USCA § 727) was bound thereby.

The present action was brought June 15, 1931, by the government upon the judgment in the original suit prosecuted by the United States against Schodde et al., and the complaint pleaded the judgment (obtained 10 years before) and that it had not been reversed, set aside, modified, or paid. Three of the original defendants, Schodde, Custer, and Nelson, appeared and contested the action.

On September 26, 1932, defendants Custer and Nelson filed an amended answer which was later adopted by defendant Schodde, and which comprises fifty printed pages of the record. By the third paragraph of this answer the defendants affirmatively pleaded the judgment theretofore rendered, admitting that they had been duly and regularly served with process, had appeared in the action, that the court had obtained jurisdiction of said defendants, and the said judgment was rendered against them, but the defendants set up that the court had not obtained jurisdiction of the subject-matter of said action or of all parties interested therein. The fourth paragraph of the amended answer further admitted that the judgment had never been reversed, set aside, or modified, but denied that it was a legal or valid judgment. They further pleaded in a fifth paragraph that they had no information sufficient upon which to base a belief that said judgment had not been transferred or assigned, and therefore denied these allegations in the complaint, but in the same paragraph of the answer alleged that this denial was based upon a subsequent affirmative defense where the ownership of said judgment was attacked as a proposition of law. It was admitted that defendants had not paid the judgment or any part thereof.

The amended answer then pleaded several affirmative defenses: First, alleging that the suit instituted by Custer to enjoin the United States marshal from serving the execution issued upon the judgment constituted an action upon the same subject then pending between the same parties. As a second affirmative defense pleaded the same suit as pending and as res adjudicata of the subject-matter in controversy. As a third affirmative defense pleaded that the court in rendering the judgment in the original action, upon which the action at bar is based, did not have jurisdiction of the subject-matter and did not have authority to render such judgment, all of which would affirmatively appear on the face of the record, and the amended answer then sets forth the entire record in the previous action. For a fourth affirmative defense the amended answer alleged that the judgment dated March 7, 1921, is based upon a right created by the statutes of Idaho, which right expired prior to the institution of the suit. A fifth affirmative defense set forth that the lands described, and the subject of the lease agreement upon which the judgment was rendered, were for the benefit of the Minidoka project in Idaho, and that the Minidoka irrigation district, by virtue of certain statutes pleaded, as alleged would be entitled to any moneys recovered on the judgment herein, and therefore the United States was not the real party in interest in the suit.

To this amended answer the plaintiff filed a motion to strike that part of paragraph 3 in defendants' amended answer which denies that the court had jurisdiction of the subject-matter of the action or of all the parties interested, and paragraph 5 of the amended answer as not constituting a valid denial, and the motion also was to strike out each and every one of the five affirmative defenses. At the same time a separate demurrer was filed attacking all and several of the five affirmative defenses.

It was stipulated by the respective parties that a jury be waived, and the case was heard by the court without a jury. Thereafter testimony was taken, and it was agreed between the parties that the demurrer and the motion of the plaintiff to strike should be considered together with the testimony taken, and at the close of the trial the plaintiff moved the court to enter judgment, and the defendants moved for judgment on the affirmative matter set forth in their amended answer. Defendants also moved to abate the case as to defendants Geo. H. Schodde, W. W. Custer, and Louis Nelson.

In its memorandum opinion the court pointed out that the Supreme Court in the case of Custer v. McCutcheon, 283 U. S. 514, 51 S. Ct. 530, 75 L. Ed. 1239, held that the plaintiff here was not precluded from bringing an action upon the judgment, but merely from having execution in the form provided by state law.

Continuing, the court said¹:

"* * * This being an action upon a judgment it would seem that the decision of the Supreme Court is conclusive upon that question. That leaves to be disposed of the demurrer and motion of the plaintiff to strike the affirmative defenses referred to in the answer of the defendants.

"First: As to the first affirmative defense the contention is made that there was another action pending in this court at the time this action was filed and that the case referred to in Custer v. McCutcheon, 283 U. S. 514, 51 S. Ct. 530, 75 L. Ed. 1239, is still pending. The subject matter in that case was the right to the issuance of an execution while in the pending case the subject matter is the right of the government to renew a judgment. They are not the same subject matters at all.

"Second: In the second affirmative defense the contention is made the same as in the first and is disposed of in the first affirmative defense as the subject matter of the two cases is not the same.

"Third: As to the third affirmative defense the contention is made questioning the jurisdiction of the court for the reason the court did not have jurisdiction of the subject matter. The original case and the present case, as has been stated, involve different subject matters. The court did have the jurisdiction in that case as it was one where the government was suing upon a lease, while the present case is one where the government is suing upon a judgment. The judgment in the original case is a final one and has adjudicated all matters relating to a lease, while the present suit is merely one asking for a renewal of a final judgment.

"Fourth: In the fourth affirmative defense the contention is made whether the statutes of Idaho are statutes of limitation or a grant of right. This question was disposed of in the opinion of this court above referred to.

"Fifth: In the fifth affirmative defense the contention is made which relates to the merits which were disposed of in the original case and which involved the right of the government to lease project lands and the question was disposed of by this court."

Accordingly, judgment was entered in favor of the plaintiff, from which defendants have appealed to this court.

The assignments of error are somewhat involved and obscure. Comments of the trial court referring to the demurrer and motion of the plaintiff to strike the affirmative defenses are set forth as error, but most of these do not directly or even...