29 Mont. 390 | Mont. | 1904
delivered tbe opinion , of tbe court.
On October 11, 1900, tbe defendant, claiming to be tbe owner of tbe Powbatan quartz lode mining claim, -instituted proceedings for patent tberefor in tbe United States land office at Helena. Tbe plaintiffs, having filed in that office their adverse claim to a portion of tbe ground covered by tbe Powbatan location under a location called tbe “Copper Blossom,” brought this action in pursuance of Section 2326 of tbe Bevised Statutes of tbe United States (U. S. Comp-. St. 1901, p. 1430) to have determined tbe right of possession to- the portion of tbe ground in conofiict.
Tbe original complaint, besides tbe necessary averments as to right of possession in plaintiffs, alleged that tbe adverse claim bad been filed and allowed within sixty days after tbe first publication of tbe notice, and that tbe action bad been com
It has long been the rule in this jurisdiction that, in order to state a cause of action in an adverse suit under Section 2326 of the United States Devised Statutes (U. S. Comp. St. 1901, p. 1430), it must be alleged that the adverse claim has been filed within time in the proper land office, and that the action has been commenced within thirty days, allowed for that purpose. The rule -was first' declared by the territorial supreme court in Mattingly v. Lewisohn, 8 Mont. 259, 19 Pac. 310. It doubtless grew out of the view early entertained by that court that, though the action assumed the character of ejectment or a suit to quiet title, according as the one or the other form of action was appropriate, the ultimate purpose of it was to determine which of the contestants was entitled to a patent, the final judgment in the case being determinative of this question. (Wolverton v. Nichols, 5 Mont. 89, 2 Pac. 308; s. c. on error
The filing mark upon a complaint is not part of the pleading, and the court could not, look to it, as it evidently did, in considering the motion, as conclusive evidence that the plaintiffs’ action was without merit. At best, the filing mark - is only prima facie evidence of the actual filing; for a paper is actually filed when it is deposited with the clerk in his office for that purpose, accompanied by the filing- fee. The date of the filing
The judgment is reversed, and the cause is remanded for further proceedings in accordance with the views herein expressed.
Reversed and remanded.