Stoltz v. United States, 8790.
| Decision Date | 24 October 1938 |
| Docket Number | No. 8790.,8790. |
| Citation | 99 F.2d 283 |
| Parties | STOLTZ v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
D. W. Doyle, of Conrad, Mont., for appellant.
John B. Tansil, U. S. Atty., and Roy F. Allen, Asst. U. S. Atty., both of Butte, Mont., and Norman MacDonald, Thomas E. Harris, and Oscar A. Provost, Attys., Department of Justice, all of Washington, D. C., for the United States.
Before GARRECHT, HANEY, and HEALY, Circuit Judges.
The court below granted appellee restitution of certain premises allotted to Indian wards and judgment for triple damages in the sum of $1496.25 with interest and costs. Appellant was defendant below.
The parties refer to the cause as an action for unlawful detainer. The allegations of the pleading filed by appellee, designated as a "Complaint", however, seem to call for injunctive relief and apparently the cause was intended as a suit in equity. Since the parties treat the cause as one at law, we assume for the purposes of our decision, that the equitable claims were insufficient or withdrawn.
The complaint alleged that the Indian allottees and wards of appellee leased, by writing and with the consent, authority and approval of appellee, certain real property on an Indian Reservation to appellant for the term from April 1, 1932 to and including March 31, 1936; and that on November 21, 1935, the wards, with the consent, authority and approval of appellee, leased a portion of the premises to one Idso for the term from April 1, 1936, to April 1, 1941. Idso paid the rental for the first year, in the sum of $493.75. It was further alleged that on May 22, 1936, Idso attempted to enter upon the premises with his tractor and plow and that appellant damaged the same by driving them into a ravine and since has kept Idso from entering the premises by threats of force. Appellee prayed for restitution of the premises and for damages for rents and profits, alleged to be $958.10 per annum.
Appellant, by answer alleged that by virtue of his lease, he had a preference right to a five-year lease beginning on April 1, 1936, "by meeting the highest bid made therefor"; that he did meet the highest bid, paid the first year's rental, and thereby leased the property for the period claimed by Idso; and that he remained in possession of the property until August 1, 1936.
By stipulation the cause was tried to the court. The evidence disclosed that in the fall of 1936, the superintendent of the reservation gave notice for bids on the premises in question, which notice contained the following: "* * * Leases will be let to the highest bidder, provided the bid meets with the approval of the office and the Indians consent to the terms of the bid, unless the present lessee wishes to meet the high bid * * *" On October 10, 1935, the superintendent sent a letter to appellant enclosing a form of lease to be signed. Appellant signed the lease and sent it with the first year's rental to the superintendent. When advised of a higher bid, appellant met the higher bid. The money was held in a special account, but since the wards did not execute the lease, the money, at appellant's request was applied on other leases obtained by appellant. The lease sent by appellant was not approved by an officer in charge of the reservation.
Appellant retained physical occupancy of the land until August 1, 1936, but thereafter one of his mess wagons was on the land and was still there at the time of the trial, at which time appellant testified, "I still claim that I am holding possession of that land right today."
There was no request for special findings made by appellant. The court below made a general finding for appellee, and held "that the measure of damages here is the rental value of the land in question which, according to the undisputed proof, is $493.75 plus a lease fee of $5.00." The damages thus found were trebled pursuant to Rev.Codes of Mont. § 9901, and judgment was entered for restitution of the premises and for the sum of $1496.25. Appellant seeks review of the judgment.
Appellee contends that there is nothing to review, because no question is raised as to admissibility of evidence, and because there was no request for special findings, and of course, no exceptions. Under the new Rules of Civil Procedure the questions presented would require answer, notwithstanding a failure to except or request special findings. Rules 46, 52 (a), 28 U.S.C.A. following section 723c. We think that there is sufficient justification for treating the failure to except and to request special...
To continue reading
Request your trial
-
Anglo California Nat. Bank v. Lazard
...whether or not the party raising the question has made in the district court * * * a motion for judgment" (Rule 52(b)). Stoltz v. United States, 9 Cir., 99 F.2d 283, 284; Jackson County, Missouri v. Alton Railroad Company, 8 Cir., 105 F.2d 633, July 11, 1930. I think such rules are applicab......
-
Palm Springs Paint Co. v. Arenas
...U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820 (Conveyance); Spector v. Pete, 157 Cal.App.2d 432, 321 P.2d 59 (Contract to Sell); Stoltz v. United States, 99 F.2d 283 (Lease); United States v. Flournoy Livestock and Real Estate Company, C.C., 69 F. 886 (Lease); Eagle-Picher Lead Company v. Fullerton,......
-
United States v. 9,345.53 ACRES OF LAND, ETC.
...224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820 (1912); Smith v. McCullough, 270 U.S. 456, 46 S.Ct. 338, 70 L.Ed. 682 (1926); Stoltz v. United States, 99 F.2d 283 (9th Cir. 1938); American Surety Co. of New York v. United States, 112 F.2d 903 (10th Cir. The statutes provide that "unallotted lands ......
-
Monaghan v. Hill
...Pump Co., Inc., v. Edwards, 9 Cir., 118 F.2d 338, 339; Hill v. Ohio Casualty Ins. Co., 6 Cir., 104 F.2d 695, 696; Stoltz v. United States, 9 Cir., 99 F.2d 283, 284; Penmac Corp. v. Esterbrook Steel Pen Mfg. Co., D.C.N.Y., 27 F.Supp. 86, Appellee bases his motion on Rule 46 of the Federal Ru......