Malony v. Adsit, 175 U.S. 281 (1899)
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Malony v. Adsit
No. 67
Argued October 25-26, 1899
Decided December 4, 1899
175 U.S. 281
APPEAL FROM THE DISTRICT COURT OF THE
UNITED STATES FOR THE DISTRICT OF ALASKA
Syllabus
Allowing and signing a bill of exceptions is a judicial act, which can only be performed by the judge who sat at the trial, and section 953 of the Revised Statutes is intended to provide and does provide that no bill of exceptions can be deemed sufficiently authenticated unless signed by the judge who sat at the trial, or by the presiding judge if more than one sat.
This action being an action of ejectment, the provision in section 3524 of the Oregon Code with regard to actions for forcible entry and detainer have no application to it.
In May, 1896, Ohlin H. Adsit filed a complaint against John F. Malony in the United States District Court for the District of Alaska, to recover possession of the undivided one-half of a tract of land in the Town of Juneau, District of Alaska. The complaint averred that on the 29th day of April, 1891, and for more than nine years prior thereto, the plaintiff and his grantors were the owners by right of prior occupancy and actual possession of the land in question, and that plaintiff was entitled to the possession thereof; that one James Weim was the owner of the other undivided one-half part of said land; that, on or about the 29th day of April, 1891, the defendant and his grantor, without right or title so to do, entered thereon, and ousted and ejected the plaintiff and his grantors therefrom, and from thence hitherto have wrongfully withheld possession from the plaintiff.
The plaintiff prayed judgment for the recovery of the possession of an undivided one-half part or interest of, in, and to the whole of the described premises, and for his costs and disbursements in the action.
On June 8, 1896, the defendant demurred to the complaint on the alleged ground that the same did not state facts sufficient to constitute a cause of action.
On October 9, 1896, the court overruled the demurrer and gave leave to the defendant to file an answer. An answer and replication thereto were filed. The case was tried August 10, 1897, before Arthur K. Delany, district judge, a jury having been waived. Judge Delany made the following findings of facts and conclusions of law:
This cause having been regularly called for trial before the court -- a jury trial having been expressly waived by stipulation in open court of the respective parties appearing herein -- Johnson & Heid appeared as attorneys for the plaintiff, and John F. Malony, the defendant herein, appeared in proper person, and the court having heard the proofs of the respective parties and considered the same and the records and papers in the cause and the arguments of the respective attorneys thereon, and the cause having been submitted to the court for its decision, the court now finds the following facts:
I. That on the 19th day of April, 1881, the plaintiff and his grantors entered into actual possession of all that certain lot, piece, or parcel of land described in the complaint as lot numbered four (4), in block numbered four (4), in the Town of Juneau, District of Alaska, according to the plat and survey of said Town of Juneau made by one G. C. Hanus, accepted and adopted in the year 1881 by the citizens of the town formerly known as Rockwell, but now Juneau, Alaska, said lot being situated on the corner of Second and Franklin Streets, in said Town of Juneau, claiming said lot, piece, or parcel of land in their own right, and the said plaintiff and his grantors have, ever since the date last aforesaid, occupied, used, and possessed said lot or piece or parcel of land, having erected a substantial frame or wooden building or structure thereon, using and claiming the same in their own right from that date to the present time adversely to all the world, and especially as against the defendant.
II. That the plaintiff is the owner of an undivided one-half (1/2) part or interest of, in, and to said lot No 4, in said block No. 4, hereinbefore described, and that the whole of said lot, piece, or parcel of land in the complaint described lies within the said Town of Juneau, Alaska.
III. That on or about the 29th day of April, 1891, the defendant, without right or title so to do, entered on and upon said described lot, piece, or parcel of land in the complaint described and ousted and ejected the plaintiff and his grantors therefrom, and from thence hitherto has wrongfully withheld the possession thereof from the said plaintiff.
As conclusions of law from the foregoing facts, the court now hereby finds and decides:
1. That the plaintiff is the owner and entitled to the possession of an undivided one-half part or interest of, in, and to said lot, piece, or parcel of land as the same is described in the complaint on file herein as against the defendant and all persons claiming or to claim the same or any part of said right or interest of the plaintiff in and to said lot, piece, or parcel of land under him, the said defendant, and that the defendant has no right, title, or interest in or to said land or any part thereof.
2. That the plaintiff is entitled to a judgment, as prayed for in his complaint, for the recovery of the possession of an undivided one-half part or interest of, in, and to said lot No. 4, in said block No. 4, in said Town of Juneau, against said defendant and all persons claiming or to claim the same or any part thereof under or through the said defendant.
3. That the plaintiff is entitled to a judgment for costs, to be taxed herein, against the defendant.
And judgment is hereby ordered to be entered accordingly.
On August 11, 1897, a motion for a new trial was made and overruled. Judgment for the plaintiff was duly entered, and on September 20, 1897, the plaintiff was put in possession of the premises in dispute, in pursuance of a writ of possession allowed by Hon. Charles S. Johnson, judge of the United States district court, who had succeeded Hon. Arthur R. Delany to that office.
On September 6, 1897, the defendant gave notice of an appeal to the United States Circuit Court of Appeals for the Ninth Circuit. On January 4, 1898, the defendant acting on a decision of the Supreme Court of the United States, wherein it was held that such causes were not appealable to the circuit court of appeals, but that appeals in such cases should be prosecuted to the Supreme Court of the United States, prayed for an appeal to this Court, which was on said day allowed as prayed for by Judge Johnson.
On January 4, 1898, a bill of exceptions, to which was appended a statement, signed by the counsel of the respective parties, that the bill of exceptions was correct and in accordance with the proceedings had in the trial of the cause, and the record discloses that, on said 4th of January, 1898, the bill of exceptions was settled and allowed by Judge Johnson.