Walton v. Wild Goose Mining & Trading Co.

• Citation: 123 F. 209
• Decision Date: 25 May 1903
• Docket Number: 923.
• Parties: WALTON et al. v. WILD GOOSE MINING & TRADING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

123 F. 209

WALTON et al. v. WILD GOOSE MINING & TRADING CO.

No. 923.

United States Court of Appeals, Ninth Circuit.

May 25, 1903

Bruner & Bros., Elwood Bruner, A. J. Bruner, and George D Schofield, for plaintiffs in error.

Page McCutchen & Knight and Gordon Hall (E. J. McCutchen, Samuel Knight, and A. J. Daley, of counsel), for defendant in error.

In Error to the District Court of the United States for the Second Division of the District of Alaska.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

This is an action in ejectment brought by the plaintiff in the court below, defendant in error here, to recover the possession of a certain placer mining claim (designated as claim No. 19) and consisting of 20 acres of land situated on Ophir creek in Council City Recording District in Alaska. The case was tried before a jury, which found a verdict in favor of the defendant in error for the property described in the complaint, without any damages for the use and detention thereof. Judgment was rendered upon the verdict, from which judgment the plaintiffs in error have sued out a writ of error. They base their claim to the land upon a relocation of the ground, and the real merits of the case involve but one question, viz., whether the original locator, through whom the defendant in error deraigns its title, performed the annual assessment work upon the mining claim in controversy during the year 1899. Upon this point there is much conflict in the evidence. Lena Walton, on behalf of the plaintiffs in error, testified that early in December, 1899, she went upon the ground 'and made a careful examination of the claim for the purpose of ascertaining whether or not any assessment work had been done. I found Walker's initial stake, but there were no corner stakes whatever upon the claim. On or about the 10th or 12th of December, 1899, I went with * * * Wilson upon the claim and examined the property. There was no work of any kind done upon the claim at that time. * * * On the morning of January 1, 1900, at the hour of 1 a.m., Mr. Wilson and I located the claim,' and that there was but one stake on the ground at that time, and that was at the initial point of location. Several of the witnesses testified substantially to the same effect. On behalf of the defendant in error, evidence was introduced as to the existence of stakes at the four corners as well as at the initial point, and that in July, 1899, there was a cut from 30 to 50 feet long, 3 feet wide, and 3 feet deep; another cut 10 to 12 feet long, and about 5 feet deep; and other small prospect holes at other places, the work in value being variously estimated by the witnesses at from $100 to $200.

The record in this case comes before the court in a very unsatisfactory manner, and many of the alleged errors are not assigned in the manner required by the rules of this court. Exceptions were indiscriminately taken in the court below upon nearly every ruling made or action taken by the court, and in many instances no specific objection was made. The record shows that 71 exceptions were taken, and it contains 42 assignments of error, and the specifications of error in the brief are reduced to 26.

1. The Circuit Courts of Appeals have repeatedly called the attention of counsel to the absolute necessity of adhering strictly to the terms of rule 11 (90 F. cxlvi, 31 C.C.A. cxlvi), concerning 'Assignments of Errors,' and to subdivision 2 (a,b,c) of rule 24 (90 F. clxiv, 31 C.C.A. clxiv), in relation to 'Briefs.' As was said by this court in Migeon v. Montana C.R. Co., 77 F. 249, 252, 23 C.C.A. 156, 159:

'A strict compliance with these provisions would not only be of great advantage to counsel in their arguments, but would materially aid the court, and lessen its labors. It is the duty of an appellant to particularly point out the alleged error upon which he relies, and to directly refer the court to the page of the transcript where the alleged erroneous ruling of the court is to be found.'

The object of the rules is to so present the matter raised by the assignment of error that this court may understand what the question is it is called upon to decide without going beyond the assignment itself, and also that the party excepting may be confined to the objection taken at the time, which must then have been stated specifically. The party complaining of the action of the lower court must lay his finger upon the point of objection, and must stand or fall upon the case he made in the court below. Appellate courts are not the proper forum to discuss new points. They are simply courts of review to determine whether the rulings of the court below, as presented, were correct or not. Van Gunden v. Virginia Coal & Iron Co., 52 F. 838, 840, 3 C.C.A. 294; City of Lincoln v. Street-Light Co., 59 F. 756, 8 C.C.A. 253; Lincoln Savings Bank & Saving Deposit Co. v. Allen, 82 F. 148, 27 C.C.A. 87; City of Anniston v. Safe Deposit & Trust Co., 85 F. 356, 29 C.C.A. 457.

2. The first assignment of error is as follows:

'That the said court erred in overruling and denying the motion made by counsel for plaintiffs in error, at the commencement of the proceedings, for judgment on the pleadings upon the following grounds, to wit: (1) Plaintiff's second amended complaint alleges a location made May 25, 1898, and it does not affirmatively allege the performance of the annual labor required by law during the succeeding year of 1899, or at any time prior to the location of Walton and Wilson, under which answering defendants claim title; (2) that it affirmatively appears from the answers of defendants Walton and French that they claim under an alleged location dated January 1, 1900, and that it affirmatively appears in the answers of said defendants that plaintiff and its grantors failed and neglected to perform the annual assessment work on said claim for the year 1899, or prior to the Wilson and Walton location. The plaintiffs deny this last allegation on information and belief, and we contend that it is not a sufficient denial, and defendants are entitled to judgment on the pleadings.'

The reply to the second amended answer is as follows:

'(1) Plaintiff has no knowledge or information sufficient to form a belief as to the new matters and things in said second amended answer set out and contained, and therefore denies each and every new allegation and the whole thereof, except as hereinafter stated.'

In the argument of counsel for plaintiffs in error our attention is called to the fact, outside of the assignment of error, that the answer to which the above is the reply alleged that the ground in dispute 'was on the 1st day of January, 1900, public, unoccupied, and unappropriated mineral land of the United States,' and that no reply was made to this averment. This was not such 'new matter' as required a reply by section 67 of the Alaska Code, 31 Stat. 343, c. 786, but was a denial of title in the defendant in error. The contention as to the denial in regard to the performance of the annual labor on the claim for the year 1899, 'upon information and belief,' is that the defendant in error must have known whether such labor was performed or not, and that its denial, upon information and belief, was evasive, and equivalent to no denial at all. The argument upon this point might have had some force if the defendant in error had been the locator of the claim, but the record shows that it did not locate the claim, and did not become interested therein until September 20, 1901, when it purchased the ground, and may not, in fact, have known at the time of filing its reply what the facts were in regard to the assessment work for the year 1899. It cannot, therefore, be said that the reply was not made in good faith or that it was not sufficient. It was the duty of the plaintiffs in error, if they deemed the reply insufficient, to have, within the proper time, demurred thereto, or moved the court to strike it out, as authorized by section 70 of the Alaska Code. By failing to do so, they virtually admitted that the reply was sufficient, and the case came on for trial upon the issues thus raised. The motion thereafter made for judgment upon the pleadings was, in any event, properly overruled, because such motion could only be considered when there was no demurrer or reply to the new matter constituting the defense. Section 69 of the Code so expressly provides:

'If the answer contain a statement of new matter, constituting a defense or counterclaim, and the plaintiff fail to reply or demur thereto within the time prescribed by law or rule of the court, the defendant may move court for such judgment as he is entitled to on the pleadings.'

3. It is claimed by the plaintiffs in error that the defendant in error is not entitled to maintain this action because they were in the possession of the property 'at some time.' The assignments of error in this respect are: (3) The court erred in overruling and denying defendants' motion for a nonsuit on the ground 'that the plaintiff has failed to prove a cause sufficient to be submitted to the jury. That this is an action to recover the possession of real property, and they have shown affirmatively by their testimony that they were in possession of the property for a long time prior to the commencement of the action and subsequent thereto.' (17) That the court erred in refusing to give the following instruction during the course of the charge to the jury:

'The jury are instructed that this is an action to recover the possession of real property, and if you find from the evidence that the plaintiff entered into possession of the premises described in the complaint in the summer of 1901 and remained in possession of the...