Wulff v. Manuel

• Decision Date: 15 February 1890
• Citation: 23 P. 723,9 Mont. 276,9 Mont. 279,9 Mont. 286
• Parties: WULFF v. MANUEL.
• Court: Montana Supreme Court

23 P. 723

9 Mont. 276, 9 Mont. 279, 9 Mont. 286

WULFF v. MANUEL.

Supreme Court of Montana

February 15, 1890

Appeal from district court, Lewis and Clarke county; H. N. BLAKE Judge.

McConnell & Clayberg, for appellant.

Wade Foote & Wallace, for respondent.

DE WITT, J.

This case is before us upon respondent's motion to strike from the transcript the statement on appeal. The statement on appeal contains, as a portion thereof, a statement on motion for a new trial. It is at the latter statement, as it appears in the former, that the motion is particularly directed. The judgment below was for plaintiff. Defendant made a motion for a new trial. The motion was denied. Defendant appeals.

A statement on motion for a new trial appears to have been settled by the district judge. In the statement, on appeal appears the respondent's objections to the former statement, which objection he urges as follows:

1. That the statement on motion for a new trial does not bear thereon any evidence of service of any copy of any statement on motion for new trial, nor notice thereof, either upon the plaintiff or his attorney; nor is there indorsed thereon any acceptance of service of the statement, copy, or notice. We hold that this objection is not well founded. The statement was settled by the district judge October 25, 1889. On that day it appears that there was before the judge on file in the case an affidavit of N.W. McConnell, one of appellant's attorneys, dated July 26 1889, which sets forth in detail that on June 29, 1889, he served upon D. S. Wade, one of respondent's attorneys, the statement by then leaving the original with him; that July 2d one of respondent's attorneys returned the statement to affiant, who then filed it with the clerk of the court. This was a good service. The law provides that the moving party must prepare a draft of the statement, and serve the same, or a copy thereof, upon the adverse party. Subdivision 3, § 298, Code Civil Proc. The proof of such service was equally good. It is naturally made by the evidence of the person serving the paper. Such proof was made by a lengthy affidavit of such person, and was before the judge on making the settlement. An acceptance of service, indorsed upon a paper, relieves the party wishing to prove the fact from so doing. It would be a monstrous practice if the party on whom service was made could refuse or neglect to admit service in writing on the paper, and then claim that no service could be made to appear by evidence.

2. The respondent objects that the statement on motion for a new trial was settled by the court, in the absence of the plaintiff and his attorneys, and without any notice of its settlement to either of them. The statute is clear upon this subject. The respondent was not entitled to any notice of the settlement, for the reason that he had filed no amendments to the proposed statement. "If no amendments are served within the time designated, *** the proposed statement *** may be presented to the judge or referee for settlement, without notice to the adverse party." Id.

3. Respondent complains that the motion for a new trial was heard and disposed of in the absence of plaintiff and his attorneys, and without notice to them. This seems to be the fact. But the respondent cannot complain. The disposition of the motion was in his favor; that is, it was denied. It does not appear that the respondent was injured by the action of the court in sustaining the judgment heretofore rendered in his favor. If his absence had any effect, it seems to have redounded to his advantage. He cannot complain of this.

4. The respondent further complains that the statement, on motion for a new trial, was settled and allowed, when there was pending and undisposed of, what he calls a motion strike the statement from the files. On July 22d respondent filed the following: "Now comes the plaintiff and moves the court to strike from the files in the above-entitled action the so-called statement on motion for a new trial, and the paper so designated therein, filed, etc., for that there is no proof of a service of a copy thereof upon the plaintiff or his attorney, and for that there was never any service of a copy thereof upon plaintiff or his attorneys, or any waiver thereof, or acceptance thereof, any service, or waiver of acceptance of service, by plaintiff or his attorneys, or any notice of filing the same." Signed by plaintiff's attorneys. Also, on the same day the following: "To Messrs. McConnell, Carter & Clayberg, atty's for deft.: You will please take notice of plaintiff's motion to strike from the files the so-called statement on motion for new trial filed therein on the 2d day of July, 1889." Signed by plaintiff's attorneys. Service admitted by defendant's attorneys. There was filed with the above nothing whatever in support of the recitals therein. It must be presumed that plaintiff relied upon the record. Without passing upon whether the above papers constituted a motion under the provisions of sections 482-484, Code Civil Proc., it is sufficient here to say that the alleged want of proof or service of statement was amply supplied by the McConnell affidavit July 26th, which was on file three months before the settlement of the statement, was before the judge on such settlement, and was uncontroverted by any evidence whatever. This mater we have disposed of, (paragraph 1, supra.)

5. Respondent also objects to the form of the statement on appeal, that it is not engrossed, and the matters not in chronological order. The only offense in this respect is that the amendments are placed together at the end of the statement. Such may be the chronological order in which events occurred. The arrangement is inartistic and awkward, but not a transgression of the rule which, we think, justifies us striking out the whole statement. It is our opinion that the motion should be denied, and it is so ordered.

HARWOOD, J., concurs.

BLAKE, C.J., did not sit in the case, having acted as district judge in the trial below.

HEARING ON THE MERITS.

DE WITT, J.

This action is in the ordinary form of a contest between two claimants of a quartz lode mining claim upon the lands of the United States to determine the right of defendant to proceed in the United States land-office for patent thereto. On November 18, 1887, the defendant, Moses Manuel, made application in the land-office for patent for the Marshal Ney mining claim. The plaintiff, Ivur Wuff, filed his adverse claim to such application, basing his contest upon his right to the premises by virtue of their location and possession as the Columbia mining claim, whereupon the parties were remanded to the court of competent jurisdiction (section 2326, Rev. St. U. S.) for the determination of their claims. The result was this action. The plaintiff's location of the Columbia claim was made July 1, 1882, by Henry Pflaume who was a citizen of the United States. November 30, 1885, Pflaume conveyed to Alfred Manuel. On November 30, 1887, Alfred Manuel conveyed to Ivur Wulff, the plaintiff. Such is plaintiff's location and derangement of title of the Columbia lode. Defendant's title is as follows: His Marshal Ney claim was located March 15, 1885, by said Alfred Manuel, "who," in the language of defendant's answer, "was then, and now is, a citizen of the United States," (see cross-complaint in answer, paragraph 2.) This allegation is undenied, and therefore, for the purposes of this action, will be taken as true. In October, 1885, Alfred Manuel conveyed to Moses Manuel, the defendant. It is conceded by counsel on the argument that Moses Manuel was an alien until the 28th day of May, 1889, when he was made a citizen, during the progress of the trial, being entitled thereto without a preliminary declaration for reasons unnecessary here to recite. The respective claims described are in conflict as to their area. No questions are presented as to due location, or annual representation, or compliance with mining laws, rules, or regulations, or sufficiency of the conveyances. The court below nonsuited the defendant upon his cross-complaint, for the reason that at the time when the Marshal Ney claim was conveyed to defendant, and when he made his application to the United States for patent, and the action was commenced, he was an alien. The court further refused to nonsuit the plaintiff, the defendant moving for such nonsuit on the ground that Alfred Manuel was an alien when he received title from Pflaume, and transferred the same to plaintiff. Judgment was rendered for plaintiff for the possession of the premises. A motion for a new trial was made and denied. The defendant appeals from the order denying the new trial, and from the judgment as well. Appellant relies upon two errors, which we will consider in the inverse order of their presentation.

1. The court erred in refusing to nonsuit the plaintiff. The sole ground of the motion was that Alfred Manuel, who was a link in the chain of plaintiff's title, from November 30 1885, to November 30, 1887, was during that whole period an alien, and as such not competent to receive and transmit the title. The pleadings deny to this court the discussion of that proposition, although counsel in argument and brief have devoted much time thereto. The party making the motion, the defendant, has stated in his verified answer that said Fred Manuel was a citizen of the United States ever since March 15, 1885. This was admitted by the replication. Defendant could not after wards be heard to deny and stultify his pleading by moving for a nonsuit, by which motion he was obliged to declare the falsity of his own answer. He was bound by the allegations of his answer, especially when the opposite party had accepted the truth...