106 F. 775 | 9th Cir. | 1901
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, atnd 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 aré situated within the Cape Nome mining district of Alaska. The act of congress under which Judge Noyes \yas 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
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, on or about July 1, 1899; the withholding thereof 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, wás an ordinary complaint in eject
The record shows that the complaint, in the action at law thus spoken of, was verified by Melsing on the 25th day of August, 1899, and is entitled in the district court of the United States for the district of Alaska, which court was abolished by the act of congress of June 6, 1900 (31 Stat. 321). That complaint, however, appears from the record to have been filed in the district court for the district of Alaska, Second division, created by the last-mentioned act of congress, at the time the bill in the case of Melsing et al. against Tornanses was filed therein, together with an affidavit of Melsing, made by him on the 25th day of August, 1899, evidently to be used in some way in connection with the action at law entitled in the abolished court. The bill in the case of Melsing et al. against Tornanses further alleges that on the 11th day of March, 1899, Melsing discovered gold in the ground known as said “Placer Mining Claim No. 10 Above Discovery,” and, being at the time competent to do so, located the ground under the mining laws of the United States, marking the boundaries thereof in accordance with law, and recording the notice of the location in the office of the recorder of the district in which the claim is situated, and took peaceable possession thereof; that thereafter, and on or about May 1, 1899, the defendant Tornanses wrongfully and forcibly, by himself and others under him, ejected Melsing from the premises, and took possession of the claim, and has ever since withheld its possession from him; that during the mining season of 1899 .the defendant worked the said claim, and extracted therefrom gold of the value of at least $150,000, and at the opening of the season of 1900 commenced, and still continues, the working of the claim, thereby extracting therefrom each day gold and gold dust of the value of at least $5,000, all of which the defendant Tornanses, his lessees and grantees, have appropriated to their own use and ben
It was upon the showing here stated, and under the circumstances' above detailed, that Judge Noyes, on the 23d day of July, 1900, signed the orders granting the injunctions, and appointing the receiver of the mining claims in question, who at once took possession of them. On the 24th day of July, 1900, in the case of Melsing et al. against Tornanses, and on the 30th day of July, 1900, in the case of Rogers against Kjellman, the parties claiming under Tornanses and Kjellman moved the court to vacate those orders, supporting the motions by the notices of location of the respective claims by Tornanses and Kjellman, by their respective deeds of conveyance, and by numerous affi
In each case the' district court, on the 10th day of August, 1900, made and entered an order denying the motion so made to vacate the order granting the injunction and appointing the receiver, and on the 14th day of August, 1900, counsel for the defendants, in each case, petitioned the court for an order allowing an appeal from the order granting the injunction and appointing the receiver, at the time presenting to the court a proper bond on appeal, together with an assignment of errors and a proposed bill of exceptions for settlement and allowance; in response to which the judge, on the 15th day of August, 1900, made an order in each case “that said proposed bill of exceptions is in each and every part thereof disallowed as a bill of exceptions herein, and the settlement thereof, or of any proposed bill of exceptions herein, is hereby refused; that said petition for an order allowing said appeal is hereby denied; and said judge declines to accept or fix the amount of any bond for costs thereof, or allow a supersedeas bond to be given, or fix the amount thereof. Dated Nome, Alaska, August 15, 1900. Arthur H. Noyes, Judge.” On the same day, to wit, August 15, 1900, the judge made and entered the following order in each case: “Now, at this time comes the plaintiff, by his attorneys, Hubbard, Beeman & Hume and Dudley Du Bose, and moves the court for an additional and further order in the matter of the appointment of Alexander McKenzie, as receiver in the above-entitled suit, and, the court being fully advised in the premises, it is further ordered that, in addition to the powers and authorities already granted the receiver appointed, the said receiver is hereby ordered to take possession of the placer claim mentioned in the complaint herein, and all sluice boxes, dams, excavations, machinery, pipe, boarding houses, tents, buildings, safes, scales, and all other personal property, fixed or movable, on the said placer claim; also all gold, gold dust, precious metals, money, books of account, and each and all personal property upon the said claim connected therewith and in any way appertaining thereto, in possession of and under the control of the defendant, his lessees, grantees, assigns, and employés; and all and every person in possession of the said claim, or claiming any right, title, or interest in
“Arthur H. Noyes, Judge.”
For this sweeping order against any and every person, whether a party to the suit or not, and this express requirement of the receiver to take possession, among other things, of all sluice boxes, machinery, pipe, boarding houses, tents, safes, scales, money, books of account, and all other personal property upon the claims, of whatsoever kind oy nature, no basis of any kind appears from the records which have been brought here upon certiorari to have been presented to the court below, although the order recites upon its face that the court was “fully advised in the premises.” Nor does it appear that the slightest attention was paid to an express provision of the very statute under which the court was created and existed, in terms prohibiting the appointment of a receiver in any action for the recovery of specific personal property (Code Alaska, § 753), nor to sections 301 or 475 of the same Code, which provide as follows: ‘
“Sec. 301. Any person who has a legal estate in real property, and a present right to the possession thereof, may recover such possession, with damages for withholding the same, by an action. Such action shall be commenced against the person in the actual possession of the property at the time, or, if1 the property be not in the actual possession of anyone, then against the person acting as the owner thereof.”
“Sec. 475. Any person in possession, by himself or his tenant, of real property, may maintain an action of an*651 equitable nature against another who claims an estate or interest therein adverse to him for the purpose of determining such claim, estate, or interest.”
It will be observed from these provisions that by the code governing Alaska an action of ejectment is required to be brought “against the person in the actual possession of the property at the time, or if the property be not in the actual possession of anyone, then against the person acting as the owner thereof”; and that the right to maintain an equitable action for the purpose of determining an adverse claim is only given to one in possession by himself or his tenant.
The successors in interest of the defendants to the suits having thus been denied an appeal from the orders granting the injunctions and appointing a receiver, not only of the mining claims in question, but of their personal property as well, with directions to the receiver to extract from the claims the gold which constituted their sole value, the defendants applied, with all speed possible, to a judge of this court for the allowance of the appeals which had been denied them in Alaska. The judge of this court to whom the applications were made, and upon a showing embracing much of this shocking record, at once granted the appeals, requiring and approving a supersedeas bond in each case in the sum of $20,000, and thereupon ordered a writ of supersedeas to issue out of this court under its seal, in each case, and, in writing, approved the form thereof, staying all proceedings under the orders granting the injunctions and appointing the receiver, and further ordering the receiver to at once restore to the defendants from whom he had taken them the said mining claims, together with the gold, gold dust, and other personal property received by him under the orders appealed from. Certified copies of the order allowing the appeal in each case, together with certified copies of the assignment of errors and of the bond, were, with the original writ of supersedeas and the original citation in each case, filed in the lower court on the 14th day of September, 1900, and copies thereof at once served upon the receiver, McKenzie, and a demand made upon him for the restitution of the property in accordance with the writs.
It is said by counsel for the respondent McKenzie that the action of Judge Noyes in refusing to allow the appeals petitioned for, and in refusing to settle any bill of exceptions, was based upon the opinion that no appeal is allowed by law from the orders made by him; and it is here so contended. Provision is made by section 504 of the Alaska Code for the taking and prosecution of an appeal from the final judgment of the district court for the district of Alaska, or any division thereof, direct to the supreme court of the United States in certain cases, within which the present cases do not come, and it is then provided “that in all other cases, where the amount involved or the value of the subject matter exceeds the sum of five thousand dollars, the United States circuit court of appeals for the Ninth circuit shall have jurisdiction to review upon writ of error or appeal the final judgment (and) orders of the district court.” And section 507 of the same Code declares that “an appeal may be taken to the circuit court of appeals from any in
Leaving out of consideration the last-quoted section, which in express terms authorizes an appeal from an order granting an injunction, and without considering the right of the defendants to the suits in question to thus have reviewed the orders enjoining them from working the mining claims involved in them, and as a necessary incident the right of the court to appoint a receiver of the property claimed by them, we think we may safely rest the jurisdiction of this court to review those orders upon section 504 of the Alaska Code, above referred to. And it is for this court, subject to review of its action by the supreme court, to determine whether it may entertain jurisdiction of the cause removed, and to dispose of controversies in respect to the form of its writs, the parties, the citation, and their service, without interference from any other court. Ex parte Chetwood, 165 U.S. 443, 17 S.Ct. 385, 41 L.Ed. 782. Courts take judicial notice of the general physical and climatic condition of the country within their jurisdiction. We therefore know judicially, as well as from the record in these cases, that the sole value of the mining claims in question consisted in the mineral contained in them. The extraction of that is therefore the taking of the very substance of the estate, and when all of it is removed nothing of value will remain in the claims. In the case of a vein or lode mine, with tunnels, drifts, and shafts in which there are timbers to be placed, replaced, or repaired, or water to be controlled, it sometimes happens that the appointment of a receiver becomes necessary to take possession of and operate the mine pending the litigation, in order to preserve the property; but even in that class of cases the necessity for a receiver is not of frequent occurrence. This is well shown in the case of Bigbee v. Summerour, 101 Ga. 201, 28 S.E. 642. So, too, in the case of placer mining claims valuable only for the oil contained in them, where it be
We have no hesitation in holding that an order by which a placer mining claim, whose proper preservation in no respect requires it, is taken from one who is in the actual possession thereof, and turned over to a receiver, with instructions to extract from it its only value, is, in effect, a final decree, and appealable as such; for its entire value may be thus destroyed by improper working or extravagant management, or by the extraction of all its mineral, while he from whom it is taken, and who asserts a right to it, may prefer to work the claim to a limited extent only, or in a particular manner, or not at all. He may prefer to hold it for sale or other disposition; yet, under such orders as are here involved, the operations of the receiver of necessity constantly exhaust the very substance of the property, and may speedily render it absolutely worthless. Surely, the authority, by whatever name called, under which such a result may be wrought, is, in effect, a final judgment. As was said by the circuit court of appeals for the Third circuit in Potter v. Beal, 2 C.C.A. 60, 50 F. 860, the determination of the question as to what is or is not a final decree “is to be governed by the essence of what is done, and not by the appellation given to it.” In the Farmers’ Loan & Trust Co. Case, 129 U.S. 206, 9 S.Ct. 265, 32 L.Ed. 656, it was held that an order allowing a receiver of a mortgaged railroad to issue certificates which should be pre
The remaining points urged on behalf of the respondent may be briefly disposed of. It is contended that, in order to give effect to the orders made by Judge Morrow allowing the appeals, it was essential to file the original orders in the lower court. Only certified copies of those orders were so filed; but the original citation and the original writ of supersedeas were filed in the lower court in these cases, together with certified copies of the assignment of errors and of the supersedeas bond. All of these papers were filed in the district court, September 14, 1900. That that was sufficient to give effect to the appeal has been expressly decided by the supreme court in two cases (Brown v. McConnell, 124 U.S. 489, 8 S.Ct. 559, 31 L.Ed. 495, and Stewart v. Masterson, 124 U.S. 493, 8 S.Ct. 561, 31 L.Ed. 507).
Section 1007 of the Revised Statutes (28 U.S.C.A. § 874 and note) declares: “In any case where a writ of error may be a supersedeas, the defendant may obtain such supersedeas by serving the writ of error, by lodging a copy thereof for the adverse party in the clerk’s office where the record remains, within sixty days, Sundays exclusive, after the rendering of the judgment complained of, and giving the security required by law on the issuing of the citation. But if he desires to stay process on the judgment, he may, having served his writ of error as aforesaid, give the security required by law within sixty days after the rendition of such judgment, or afterward with the permission of a justice or judge of the appellate court. And in such cases
It is contended that the supersedeas thus provided for by statute does not require the restoration to the defendants, pending- the appeal, of any property taken by the receiver. Let that be admitted, and the fact remains that in each of these cases Judge Morrow ordered a writ of supersedeas to be issued out of this court, under its seal, and, in writing, approved the form of the writs, each of which required the receiver, among other things, to restore to the possession of the defendants the personal property he had taken from them, together with the gold and gold dust extracted by him as such receiver from the claims. It is said that a single judge of this court cannot grant a writ of supersedeas. Sections 1000 and 1007 of the Revised Statutes (28 U.S.C.A. §§ 869, 874 and note), the case In re Claasen, 140 U.S. 200, 11 S.Ct. 735, 35 L.Ed. 409, rule 36 of the supreme court (11 Sup.Ct. iv.), and section 11 of the act approved March 3, 1891 (28 U.S.C.A. §§ 228, 230, notes), creating this court, conclusively answer this objection.
By section 11 of the circuit court of appeals act it is, among other things, provided that “any judge of the circuit court of appeals, in respect of cases brought, or to be brought, to that court, shall have the same powers and duties as to the allowance of appeals or writs of error, and the conditions of such allowance, as now by law belong to the justices or judges in respect of the existing courts of the United States respectively.” In the case In re Claasen, supra, the supreme court held that a justice of the supreme court was authorized to grant a supersedeas, saying: “By section 1000 of the Revised Statutes, it is provided that every justice or- judge signing a citation on any writ of error shall take security for the prosecution of the writ, and for costs, where the writ is not to be a supersedeas and stay of execution, and for damages and costs where it is to be. In a criminal case, there are no damages; and in such a case, the United States being a party, it is provided by subdivision 4 of rule 24 of this court (3 Sup.Ct. xiii.) that, in cases where the United States are a party, no costs shall be allowed in this court for or against the United States.
The rule thus referred to and adopted by the supreme court will be found in 139 U.S. 706, 11 S.Ct. iv., and is as follows: “(1) An appeal or a writ of error from a circuit court or a district court direct to this court, in the cases provided for in sections 5 and 6 of the act entitled ‘An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes,’ approved March 3, 1891, may be allowed, in term time or in vacation, by any justice of this court, or by any circuit judge within his circuit, or by any district judge within his district, and the proper security be taken and the citation signed by him, and he may also grant a supersedeas and stay of execution or of proceedings, pending such writ of error or appeal.”
It is further contended that the scope of the writs was too broad, in that, in the first place, they went beyond the orders of Judge Morrow, and, in the second place, that it was beyond the power of the court to require the receiver to restore the property taken by him. It is true that the orders first made by Judge Morrow did not in terms direct the receiver so to restore the property, but in each case that judge subsequently, and on the same day, made an order
The same rule is applicable to a receiver. See, also, Wells, Fargo & Co. v. Oregon Ry. & Nav. Co. (C.C.) 19 F. 20; Ulman v. Ritter (C.C.) 72 F. 1000, 1003; Magennis v. Parkhurst, 4 N.J.Eq. 433, 436. But the point itself is, we think, untenable. In the leading case upon the subject (that of State v. Johnson, 13 Fla. 33, 48) it is said: “The allowance of a supersedeas does not, nor does the order in this case, ‘undo’ or reverse the order of the circuit judge. The order, following the intent and effect of the law in terms, directs a stay of all proceedings under the several orders appealed from, and suspends their operation. The power of the circuit court was suspended, and thereby the power of all the officers in that court, under its orders in question, became inoperative. They no longer had any duties to perform under such orders. The authority of the receiver to continue to act as such was made nugatory by the operation of the law. He had entered upon an office and commenced to act when the office was suspended. The supersedeas as understood by us, and as seems to be understood by the courts, does of necessity retroact by suspending the life of the order appealed from; reaches back to that order, and forbids action under it. It does not make unlawful an act done in pursuance of the order before the appeal was taken, but it forbids the court and its officers further to act. No new rights having been created, and the duties of the receiver being superseded, the bond standing in the place of the property in his hands, and he having been notified thereof by proper process,, it was his duty to restore that which had come to his hands to the parties from whom it had been taken and withheld; for, his
The case of State v. Johnson has been several times approved. Buckley v. Georgia, 71 Miss. 580, 15 So. 46; Bank v. Backus, 63 Minn. 115, 65 N.W. 255. See, also, Everett v. State, 28 Md. 190; Freem. Ex’ns (2d Ed.) p. 876, § 271a; High, Rec.(3d Ed.) p. 164, § 190'; 20 Am. & Eng.Enc.Law, 110. In the last edition (Anderson’s) of Beach, Rec. p. 129, § 117, it is said that: “From the authorities and reason, there may be legally deduced the following principles which should govern questions concerning the subject of this section: * * * (2) If a receiver be appointed and takes possession of the property prior to the appeal and supersedeas, the consummation of the appeal, with bond and supersedeas, gives to the defendant the right to demand and have the property returned to him.”
Finally, it is urged that the refusal of the receiver to obey the writs of supersedeas issued out of this court was based on the advice of his counsel that the writs were void. Such advice is never a justification of a contempt, but in proper cases may be considered in mitigation of the offense. 1 Beach, Inj. § 250; High, Inj. § 1427; Rodgers v. Pitt (C.C.) 89 F. 424, and cases there cited.
The circumstances attending the appointment of the receiver in these cases, however, and his conduct after, as well as before, the appointment, as shown by the record and evidence, so far from impressing us with the sincerity of the pretension that his refusal to obey the writs issued out of this court was based upon the advice of his counsel that they were void, satisfy us that it was intentional and deliberate, and in furtherance of the high-handed and grossly illegal proceedings initiated almost as soon as Judge Noyes and McKenzie had set foot on Alaskan territory at Nome, and which may be safely and fortunately said to have no parallel in the jurisprudence of this country. And it speaks well for the good, sober sense of the people gathered on that remote and barren shore that they depended solely upon the courts for the correction of the wrongs thus perpetrated among and against them, which always may be depended upon to right, sooner or later, wrongs
In the refusal of the respondent Alexander McKenzie to obey the writs of supersedeas issued out of this court, as hereinbefore found and stated, it is now here considered and adjudged that he did commit contempts of this court, and for the said contempt so committed in the case entitled Tornanses against Melsing et al. it is now here ordered and
Modification of Judgment.
(February 12, 1901.)
Based upon our understanding of the statement of counsel in two of the companion cases against the respondent McKenzie for alleged contempt of the process of this court that all of the pending cases against him had been, in so far as the parties thereto are concerned, settled, and that the respondent had restored to the parties from whom it had been taken the whole of the property in controversy, we so stated in the opinion delivered herein February 11th. The court is now informed that this is a mistake of fact in respect to the present cases, and that in these cases there has been no settlement as respects the parties, and there is no showing of the restoration by the receiver of the property in the above-entitled cases as required by the writs of supersedeas issued out of this court. The paragraph of the opinion of this court rendered February 11th in which the erroneous statement of fact was made will therefore be corrected, and the judgment entered in these cases at the same time will be, and thereby is, so modified as to direct that the respondent pay all the costs of the contempt proceedings herein, to be taxed by the court.
Modification of Judgment.
(February 18, 1901.)
As it is possible that the imposition of costs may be considered a fine, which, in contempt proceedings, cannot be lawfully imposed with imprisonment, it is hereby ordered that the modification of the judgment in the above-entitled cases made and entered February 12, 1901, by which the said judgment entered February 11, 1901, was “so modi