Smith v. Hovland

• Decision Date: 22 March 1926
• Docket Number: No. 4366.,4366.
• Citation: 11 F.2d 9
• Parties: SMITH v. HOVLAND.
• Court: U.S. Court of Appeals — Ninth Circuit

11 F.2d 9 (1926)

SMITH v. HOVLAND.^*

No. 4366.

Circuit Court of Appeals, Ninth Circuit.

February 15, 1926.

Rehearing Denied March 22, 1926.

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Ellinwood & Ross, John E. Sanders, and John M. Ross, all of Bisbee, Ariz., for appellant and cross-appellee.

John H. Campbell, S. L. Kingan, and A. R. Conner, all of Tucson, Ariz., and Charles C. Montgomery, of Los Angeles, Cal., for appellee and cross-appellant.

Charles R. Morfoot, of Los Angeles, Cal., for Hovland.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

HUNT, Circuit Judge (after stating the facts as above.

Nearly a year after the record was filed in this court and during the term at which the case was set for hearing, Hovland filed a petition for certiorari and for diminution of record based upon the ground that Smith was and is not the sole party in interest; that Phelps-Dodge Corporation and others are necessary parties and should be joined; and that certain papers used in a case pending in the state court of Arizona and an interlocutory decree entered January 30, 1922, in the United States District Court for the District of Arizona in the present case and a stipulation on which the interlocutory decree was entered should be certified to this court. The petition is signed by Hovland by Charles R. Morfoot. Mr. Morfoot does not appear as attorney of record in the appeal proper, and upon the hearing before us counsel of record for the appellant disclaimed any participation in the matter of the petition.

Examination of the record on appeal shows that the contents of the transcript to be filed in this court for the purposes of Hovland's appeal and of Smith's cross-appeal were settled by stipulation of the parties through their respective counsel of record and by order of the District Court dated August 13, 1924, and subsequent stipulation and order dated October 8, 1924, and also that as far back as January, 1922, the principal facts upon which Hovland now relies as grounds for his petition were matters of record in the case. Two terms of this court passed after this appeal was filed, yet no petition for certiorari was made as required by rule 18 of the court, and no satisfactory cause is shown for not having moved promptly in the premises. We therefore hold that the parties are bound by the record as stipulated by their counsel, and deny the petition for certiorari and diminution of record, and overrule the motion to join additional parties.

To enter upon an extended statement of the evidence upon the merits would greatly lengthen this opinion, and is unnecessary. The findings of fact, having been approved by the District Court after a review of the evidence, are to be taken as presumptively correct, and unless obvious error has intervened in applying some principle of law or some important mistake has occurred in weighing the evidence, the decree will not be reversed. Furrer v. Ferris, 12 S. Ct. 821, 145 U. S. 132, 36 L. Ed. 649; Road Imp. Dist. v. Wilkerson (C. C. A.) 5 F.(2d) 416. We shall refer briefly to the more important features.

Hovland's contentions are that the master and the court erred: (1) In allowing Smith a credit of $30,000 on account of the Arizona King group of mining claims; and (2) in allowing him a credit of $139,497.66 or any other sum as the value of certain options and commissions; (3) in finding that the partnership was dissolved as of March 1, 1912; (4) in finding that on March 1, 1912, Hovland had 7,850 shares of Live Oak stock and that certain stocks were purchased by Hovland for himself and not for the partnership.

Smith by cross-appeal predicates error (1) upon a charge to him of interest amounting to more than $22,000 on part of a sum received by him for the sale of the Rough Rider claims; (2) upon the decision of the court disaffirming the finding of the master allowing a debit to Hovland of $1,305,041, on account of Hovland's acts connected with 15,700 shares of Inspiration, and that in lieu of the debit in said sum Hovland should be debited with $378,605.50.

It appeared that in 1904 the company which owned the Arizona King group of claims failed to do the necessary assessment work and in January, 1905, two men, strangers to this litigation, located the claims. Thereupon Smith and the two locators agreed that Smith was to assure payment for doing necessary work and was to have a half interest in the claims. After the firm of Hovland & Smith was formed, the partnership bought some interests in the group, and eventually the claims were patented to the two strangers and Smith, and Smith conveyed all of his interest in the Arizona King group to the Union Mines Company, the entire capital stock of which was owned by Hovland & Smith. In 1912 the Union Mines Company sold its interest in the group for $100,000 which sum was applied to the payment of partnership debts. It appeared, however, that payment to the men who did the assessment work for 1904 was made by a partnership credit entered on the partnership books (which were kept in Smith's name) in March, 1906. The master did not overlook the bearing that the book entry might have as tending to support Hovland's testimony to the effect that before the partnership of Hovland & Smith was created Hovland told Smith he would join him in the purchase of the Arizona King group, but considering the fact that when the strangers made their location there was no partnership of Hovland...