Tornanses v. Melsing

• Decision Date: 11 February 1901
• Docket Number: 634,636.
• Citation: 106 F. 775
• Parties: TORNANSES v. MELSING et al.
• Court: U.S. Court of Appeals — Ninth Circuit

106 F. 775

TORNANSES v. MELSING et al.

Nos. 634, 636.

United States Court of Appeals, Ninth Circuit.

February 11, 1901

Page McCutchen, Harding & Knight, for appellants.

Thomas J. Geary and A. C. Severance, for respondent Alexander McKenzie.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

The proceedings now before the court in the above-entitled cases grow out of the alleged disobedience by one Alexander McKenzie of certain writs of supersedeas issued out of this court upon the order of Honorable William W. Morrow, one of its judges. They have been argued and submitted together, and will be so considered. Each case originated in the United States district court for the Second division of the district of Alaska, of which Arthur H. Noyes is the judge, George V Borchsenius the clerk, and C. E. Dickey a deputy clerk. Placer-mining claim known as 'no. 10 Above Discovery,' on Anvil creek, a tributary to Snake river was the subject of controversy in the action of Melsing et al. against Tornanses, and placer mining claim 'No. 2 Below Discovery,' on the same creek, was the subject of contention in the action of Rogers against Kjellman. Both claims are situated within the Cape Nome mining district of Alaska. The act of congress under which Judge Noyes was appointed was approved June 6, 1900 (31 Stat. 321). In its fourth section it is provided that 'the judge designated to preside over division numbered two (within which division is the Cape Nome mining district) shall reside at Saint Michaels during his term of office, and shall hold at least one term of court each year at Saint Michaels, in the district, beginning the third Monday in June. ' It is further provided in the fourth section that each of the three judges provided for by the act 'is authorized and directed to hold such special terms of court as may be necessary for the public welfare or for the dispatch of the business of the court, at such times and places in the district as they or any of them, respectively, may deem expedient, or as the attorney-general may direct,' and that 'at least thirty days' notice shall be given by the judge or the clerk of the time and place of holding special terms of the court.'

It is not pretended that Judge Noyes held any term of the court at Saint Michaels in June, or that any notice was given by him or the clerk of the court of the holding of a special term thereof at Nome or elsewhere, prior to the acts out of which the present proceedings arise. On the contrary, it appears from the records and proofs on file in this court that the steamer on which Judge Noyes went from the city of Seattle, Wash., to Alaska did not reach the roadstead of Nome until July 19, 1900, and that he did not go ashore until Saturday, July 21st. Two days thereafter, to wit, Monday, July 23d, he signed orders appointing Alexander McKenzie receiver of said placer mining claims, with directions to take immediate possession thereof, and to manage, mine, and work the same; to preserve the gold, gold dust, and proceeds resulting from the working and mining of the claims, and to dispose of the same subject to the further orders of the court; and further ordering the persons then in possession of the claims to deliver to the receiver their immediate possession, control, and management, and expressly enjoining them from in any manner interfering with the mining or working of the claims by the receiver, or with his control or management thereof. The amount of the bond required by the judge of the receiver was $5,000 in each case. These orders were signed at the same time, and the circumstances under which they were made appear in the proceedings of the court of August 3, 1900, on the motion of counsel for the parties against whom they were directed, made for their annulment on July 24th. We extract from the record in the case of Melsing et al. against Tornanses, precisely similar proceedings appearing also in the case of Rogers against Kjellman:

'Upon the hearing of the application to set aside appointments of receiver in the Anvil creek cases, Mr. Knight, of counsel for defendant, after reading affidavits in support of his application, continued as follows: In addition, if the court please, to these affidavits, we desire to introduce the records of the court in this case, and, if Mr. Dickey is here, i desire to call him as a witness. The Court: I believe Mr. Dickey is inside. Mr. Knight: I desire to call Mr. Dickey with reference to the filing of these papers. (It is ascertained that Mr. Dickey is not in.) The Court: The records are here; can you use them instead? Mr. Knight: I desire to prove, if the court please, that the papers were not filed in this case until after an order had been made appointing a receiver; and, further, that no process was issued at that time, or summons, and that, so far as i know, it has not been issued at the present time. Mr. Hume: So far as the plaintiff is concerned, the papers were delivered to the clerk, to be filed, all at the same time. Mr. Knight: The summons has not been served on any of our people. Mr. Hume: So far as I know, the summons has not been served in any of these cases. Preparation was made to serve the summons, but the defendants came into court the next morning, and, the question of the propriety of their appearance here before answer coming up, personal service has been delayed until the court should pass upon the matter. We have been getting the papers ready to serve each and every person interested with a copy of the complaint. Mr. Knight: I wish simply to make the point that the papers were not filed before the order was issued. The Court: All the papers were before the court; they were left here. Mr. Knight: But my point is that they were not filed until after the order appointing the receiver was made, and that the order was made before process issued. I think your honor will agree as to the fact that the bill of complaint was presented to your honor on the afternoon of the 23d day of July,1900, and that your honor thereafter made an order appointing a receiver, and the papers were subsequently that evening handed to the deputy clerk of the court for filing, but that no process was issued in the cases in which I now appear; that is, in the cases involving No. 2 Below, Nos. 10 and 11 Above, and No. 1 Nakkela. Mr. Hume, is that correct? Mr. Hume: Well, of course, as to the time they were filed, we can agree to this fact; that all the papers-- the affidavits and bills of complaint and summons-- were all presented here to the court. They were not presented to the clerk. We could not find the clerk at that time; he had no office. They were presented to the court, and left with the court. All the papers were left with the court, and the clerk was to file them; but, he being out some place we were unable to find him, and, he having no special office, we presumed they were not filed until later. Everything was in confusion then, and we simply left the papers with the court; that is all we could do. The Court: I remember this: That the papers were here on the table, and i called Mr.Dickey's attention to them. Mr. Knight: After the order had been made? The Court: Oh, yes. Mr. Knight: It is agreed, further, then, that no process has yet issued in this case? Mr. Hume: I think the summons has been issued. I know it was made out. Mr. Knight: But no process has been placed in the hands of the officer for service? Mr. Hume: No, I think not; I think not placed in the hands of an officer. The Court: I think you will find as a matter of record that the summons has been issued. Mr. Knight: As far as the issuance of process is concerned, the records will speak for themselves.'

It thus appears that the injunctions and orders appointing a receiver of the claims in question were made before the organization of the court, without notice of any character, and before any paper of any kind had been placed on the files of the court assuming the court to have been organized and in condition for the transaction of business. Not only so, but the injunction granted and the appointment of the receiver in the case of rogers against Kjellman was based upon a pleading which is without a single allegation of an equitable nature. That pleading alleges only the citizenship of the plaintiff Rogers, and the alienage of the defendant Kjellman; the competency of the plaintiff to make locations under the mining laws of the United States; his discovery of gold on, and his location of, claim No. 2 Below Discovery, on Anvil creek, on the 6th day of June, 1899; his marking of its boundaries in accordance with the statutes of the United States and with the local rules of the mining district within which it is situated, and the recordation of notice of the location in the office of the recorder of the district; the possession of the claim by the plaintiff until his dispossession by the defendant ever since, and the extraction therefrom by the defendant, and others under him, of $100,000 in gold and gold dust, to the damage of the plaintiff in that sum; and the right of the plaintiff to a restitution of the possession of the claim. The prayer is only for such restitution of possession of the property, and for $100,000 damages, and for costs. In other words, the complaint in the case of Rogers against Kjellman, upon which the judge granted an injunction and appointed a receiver, was an ordinary complaint in ejectment, without a single allegation of even an equitable nature. It is true there was presented to the judge at the same time the affidavit of the plaintiff Rogers, and the affidavit of one Charles Cooper, in which they swore, in substance, that the defendant Kjellman was not a citizen of the United States, and had never declared his...