121 F. 487 | 9th Cir. | 1903
The action, as it was begun, was brought by the defend ants in error against the plaintiff in error and Robert Duncan, Jr. Some two years later Robert Duncan, Jr., died. On December 2, 1901, more than two years after the death of Duncan, the defendants in error obtained leave to have the action continued as against J. P. Corbus, the administrator of Duncan’s estate; but when the attention of the court was directed to section 35, part 4, of Carter’s Annotated Code of Alaska, which provides that, in case of the death or disability of a party, the court may only within two years thereafter, on motion, allow the action to be continued by or against his personal representatives or successor in interest, the court on December 9, 1901, set aside the order which it had made reviving the case against the administrator, and thereupon, under authority of section 956 of the Revised Statutes [28 U.S.C.A. § 779], held that the action should be continued, tried, and determined without the revival thereof, both as against the surviving defendant and others interested with him. This ruling, and the denial of his motion to dismiss the action on the ground that it had abated by Duncan’s death, the plaintiff in error assigns as error.
There is no doubt that under this provision of the statutes the court properly denied the motion of the plaintiff in error. The cause of action was one which, not only at common law, but both by the Oregon law, which prevailed in Alaska at the time when the action was commenced, and by the Alaskan Code, which was in force when the court ruled upon the motion, survived the death of a party thereto. Hill’s Ann.Laws Or. §§ 369, 370; Act June 6, 1900, c.786, 31 Stat. 391.
Equally without merit is the contention that the court should have allowed the motion to dismiss on the ground of the misjoinder of Garside and the representatives of the estates of Mahoney and Beaumont with the plaintiffs in the action, and the nonjoinder of Minnie Ross Holman as a party plaintiff. The interest of the latter was acquired two years after the commencement of the action. Her right therefore became subject to the final determination of the action as it was then pending, and, while she might have been brought in by supplemental pleadings, it was no ground to dismiss the action that she was not. Nor can the plaintiff in error complain that parties were joined in the action against him who had parted with their interest in the subject-matter thereof. The misjoinder of the plaintiffs, if misjoinder there were, affected no substantial right of the plaintiff in error. An objection for either nonjoinder or misjoinder comes too late when made for the first time at the trial of the cause. Burbank v. Bigelow, 154 U.S. 558, 14 S.Ct. 1163, 19 L.Ed. 51.
The important question in the case is whether the court erred in ruling that the defendants in error had not waived their right to the land in controversy by applying for and obtaining during the pendency of this action a patent for all of their lode claim except that portion which is embraced
It is argued that where two conflicting applications overlap, and, upon application of the owner of either for a patent, adverse proceedings under the statute are instituted by the owner of the other, and proceedings in the land office are thereby stayed, if either party thereafter relinquish the ground in dispute by filing an amended application for patent, it is a waiver of his claim to the ground in controversy, and that if, upon such amended application, a patent be issued from the land office, it can only be regarded as a recognition of the waiver by the officers of the land office. The trial court entertained this view, and intimated that he would have held that by amending their application, and obtaining a patent for all their claim except the disputed ground, the defendants in error waived
The difference between that case and the present case is that in the former it was the original application for patent that was amended, whereas in this case the amended application was made by, and the patent was issued to, the adverse claimant. It is in that difference that the difficulty is found in applying the doctrine of that case to this.
The statute (section 2326, Rev.St.) provides in plain terms that the adverse proceedings may be brought to an end in one of three ways: First, by a settlement had between the parties; second, by a judgment of the court; and, third, by a waiver of the adverse claim. In Richmond Mining Co. v. Rose, 114 U.S. 576, 585, 5 S.Ct. 1055, 29 L.Ed. 273, Mr. Justice Miller said: “We can imagine several ways in which it can be shown that the adverse claim is waived, without invading the jurisdiction of the court while the case is still pending. One of these would be the production of an instrument, signed by the contestant and duly authenticated, that he had sold his interest to the other party, or had abandoned his claim and his contest. Or, since the act says that all proceedings shall be stayed in the land office from the filing of the adverse claim, and not from the commencement of the action in the court, within 30 days, such delay of 30 days is made by the
The first of these suggestions of the court contemplates that a waiver may be made by means of an instrument, executed by the contestant, acknowledging that he has “abandoned his claim and his contest,” presented, not to the court, but to the land office, for the learned justice refers to it as a method of waiving the adverse claim “without invading the jurisdiction of the court”; and he proceeds thereupon to suggest, as another way in which the waiver may be shown, the production of such an instrument to be filed in the records of the court where the contest is pending.. This is in harmony with the ruling of Secretary Lamar, who held that the adverse claim might, pending the action, be voluntarily dismissed in the land office without entering a discontinuance in the court. St. Lawrence Min. Co. v. Albion Consol. Min. Co., 4 Land Dec.Dept.Int. 117. Indeed, it is apparent that the officers of the Land Department regarded the amended applications as waivers of the contested ground both in the Last Chance Case and in the present case, for otherwise it is not to be supposed that they would have issued the patents, in violation of the law, while the actions were pending in the courts. In the Last Chance Case the court gave as one of the reasons for not regarding the amended application as a waiver the fact that it was made, not by the adverse claimant, but by the original applicant, so that, while it might be within the spirit of the law, it was not within its letter. But the court elsewhere in the opinion gave expression to general views which would seem to sustain the doctrine that such an amendment of an application for patent pending adverse proceedings, whether made by the original applicant or by the adverse claimant, is absolutely void, and that, if not void, it still is not necessarily a waiver of the matter in dispute or determinative of the contest, but that, if patent •be issued thereon, it is a matter which rests purely between the government and the applicant, and affects no right of the adverse party, and that the waiver contemplated by the statute must be one which in express terms acknowledges a relinquishment of all claim to the ground in dispute. It
The judgment will be affirmed.