MCKAY et al. v. NEUSSLER.

(Circuit Court of Appeals, Ninth Circuit, June 20, 1906.)

No. 1,229.

1. MINES AND MINERALS-CLAIMS-ASSESSMENT WORK-INSTRUCTIONS. Where, in ejectment for an undivided fourth of a mining claim, defendant claimed a forfeiture because of plaintiff's failure to pay her share of certain assessment work done on the property, but the only evidence of such work was defendant's testimony that he went on the claim and did what he considered $100 worth of work, and that he worked 10 days, and estimated the value at $10 a day, it was not error for the court to refuse to charge that, in determining the amount of work done on the claim, the test was as to the reasonable value of the work, and not what was paid for it, or what the contract price was.

2. SAME BONA FIDES-QUESTION FOR JURY.

Where defendant claimed a forfeiture of plaintiff's interest in a mining claim because of plaintiff's failure to pay her proportion of certain assessment work alleged to have been performed by defendant, whether defendant made a bona fide attempt to comply with the law in order to obtain a forfeiture of plaintiff's interest was not proper for the consideration of the jury.

3. WRIT OF Error-Allowance of Writ-Suersedeas-EFFECT.

By the allowance of a writ of error and the approval of a supersedeas, the trial court lost jurisdiction to correct an error in the judgment apparent on the face of the record.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2803-2805; vol. 2, Cent. Dig. Appeal and Error, § 2201.]

In Error to the District Court of the United States for the Second Division of the District of Alaska.

A. J. Bruner, J. C. Campbell, W. H. Metson, F. C. Drew, and Ira D. Orton, for plaintiffs in error.

J. F. Sullivan, M. I. Sullivan, and Theo. J. Roche, for defendant in

error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT, Circuit Judge. The defendant in error brought ejectment to recover possession of an undivided one-fourth interest in a placer mining claim known as "Bench Claim No. 6 on Anvil Creek" in Alaska. It was admitted that she had formerly owned such interest, but it was alleged in defense of the action that her co-owner, D. W. McKay had in the year 1901 performed upon the claim assessment work of the value of $100 and had served on her a demand for the payment of her proportionate share thereof and a notice of the forfeiture of her interest, and had thus acquired the same. The issues presented for trial were whether assessment work of that value had been done by said McKay in 1901 and whether the requisite notice of contribution had been served upon the defendant in error as required by the statute. Upon these issues the evidence was conflicting. The jury found for the defendant in error.

It is contended that the trial court erred in refusing to give the jury the following instruction, which was requested by the plaintiffs in error:

"With reference to the amount of labor required, you are instructed that the law requires $100 worth of work; and in determining the amount of work done upon a claim for the purpose of representation, the test is as to the reasonable value of said work, not what was paid for it, or what the contract price was. But it depends entirely upon whether, or not said work was reasonably worth the sum of $100. It is not the value of the claim, with or without the labor, nor the intrinsic value of the labor to the claim, but whether or not, under all the circumstances which surround the particular locality where the mine was situated at the time the labor was performed, the labor which was performed was reasonably of the value or would reasonably have cost $100."

The instruction so refused might undoubtedly have been proper if the evidence had been such as to render it appropriate. It was not applicable to the case made in the court below, for the reason that there was no evidence whatever that money was paid for the assessment work alleged to have been done by McKay or that a contract was made by him for the performance of the same. McKay's testimony was that he went on the claim and did thereon what he considered $100 worth of work; that he worked 10 days, and estimated the value of his work at $10 per day. On his cross-examination he admitted that he did not know what the prevailing wages were at that time and place for that kind of work. The plaintiffs in error offered no other testimony on that subject. In rebuttal thereof two witnesses testified, on behalf of the defendant in error, that the usual wages paid at that time and place for men to do such work was $2.50 per day and board and that the expense of board was not to exceed $1.50 per day. This condition of the evidence on the subject of the value of the work made applicable to the case the instruction which was given by the court on the subject; but there was nothing in it calling for that portion of the instruction asked for as to money paid or contract price, and we find no error in the refusal of the instruction in the form in which it was proffered. It is said that the court erred in refusing the following instruc tion:

"The actual value of the work is the true test whether the law has been complied with; but, where the testimony is conflicting as to the value, it is proper for the jury to consider whether there has been a bona fide attempt to comply with the law"

-and in refusing another instruction in which the court was asked to instruct the jury that, if said D. W. McKay made a bona fide attempt to comply with the law, they should take that fact, if it were. a fact, into consideration. To this it is sufficient to say that the bona fides of the attempt of an owner to comply with the law in order to obtain a forfeiture of his co-owner's interest has no part in the questions to be considered by the jury in aid of the proof that he did the requisite assessment work or otherwise. The law does not favor forfeiture. It is true that it has been held, in cases where it has been sought to establish a relocation of a mining claim, that the

bona fides of the prior locator might be taken into consideration in determining whether he had done the necessary assessment work to retain his claim. But this was held on the ground that courts are reluctant to enforce a forfeiture and will not do so, except upon clear and convincing proof of the failure of the former owner to perform the amount of labor required by law. Hammer v. Garfield Mining Co., 130 U. S. 291, 301, 9 Sup. Ct. 548, 32 L. Ed. 964, Emerson v. McWhirter, 133 Cal. 510, 65 Pac. 1036; Callahan v. James, 141 Cal. 291, 74 Pac. 853; Quimby v. Boyd, 8 Colo. 194, 6 Pac. 462.

It is contended that the court erred in adjudging the defendant in error to be the owner of one-half of the mining claim described in the complaint, instead of one-fourth, as claimed by her in her complaint and as found by the verdict. The entry of the judgment, in view of the pleadings and the verdict was evidently a clerical error. No effort was made to correct it in the court below. So far as the record goes, it was first suggested by the assignments of error filed at the time when the writ of error was sued out. By the allowance of the writ and the approval of the supersedeas, the court below lost jurisdiction to correct the error, and the defendant in error had thereafter no opportunity to suggest its correction in that court. The judgment of the court below should be modified, so as to adjudge the defendant in error to be the owner of a one-fourth interest in the premises described in the complaint. This will be ordered without costs to the plaintiffs in error.

The cause is remanded to the court below, with instructions to correct the judgment as above indicated. In other respects the judgment is affirmed.

SMITH V. MEANS.

(Circuit Court of Appeals, Seventh Circuit. October 2, 1906.)

No. 1,194.

1. BANKRUPTCY-MODE OF REVIEW-ADVERSE CLAIM TO PROPERTY.

A proceeding, on a petition filed by an adverse claimant to recover property from a trustee in bankruptcy, is not a proceeding in bankruptcy, but a "controversy arising in bankruptcy proceedings," and is reviewable by appeal under Bankr. Act July 1, 1898, c. 541, § 24a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432].

2. SAME EVIDENCE CONSIDERED.

A finding against an adverse claimant of property in possession of a trustee in bankruptcy, made by a referee who heard the witnesses and affirmed by the District Court, held sustained by the evidence.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Appellant filed his petition alleging that he was the owner and entitled to the possession of a certain steam shovel, which prior to the adjudication had been in the possession of the bankrupt and was since held by the trustee, and praying that the trustee be ordered to surrender possession. The findings of the special master, adverse to petitioner, were approved by the court. Appellee has filed a motion to dismiss the appeal.

F. L. Salisbury, for appellant.

Edwin Terwilliger, Jr., and E. C. Ferguson, for appellee.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

BAKER, Circuit Judge. 1. The motion to dismiss is predicated on the assumption that this is a "proceeding in bankruptcy" and reviewable only under section 24b or 25a. Act July 1, 1898, c. 541, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432]. On the contrary, it is a “controversy arising in bankruptcy proceedings," and the appeal was properly taken under section 24a. In re Friend, 134 Fed. 778, 67 C. C. A. 500.

2. The steam shovel was originally purchased from the makers by Bracey, Howard & Co., was in use by the partnership in construction work in Ohio, and with other construction appliances was under chattel mortgage to appellant. Later the bankrupt corporation was organized and succeeded to the property rights of the partnership. The corporation, desiring to take into Indiana the appliances which at that time were covered by a writ of attachment also, secured the dismissal of the attachment and the release of the mortgage, and the property was removed into Indiana and there used by the corporation. So much is established beyond question by the pleadings and proofs. The claim on behalf of appellant is that, when he released the mortgage, the shovel and some other items were sold and delivered to him, an agreed amount credited on the debt, and other security given for the balance. The master found that in fact neither the title to nor possession of the shovel was transferred to appellant. The question is whether the report of the master, on which the decree appealed from

is based, is sustained by the state of the evidence. The master was in the best position to judge of the weight and credibility of the testimony, which was given orally before him, and his finding, approved by the District Court, should not be disturbed by us, unless it appears that an obvious mistake was made in the consideration of the evidence. Crawford v. Neal, 144 U. S. 585, 12 Sup. Ct. 759, 36 L. Ed. 552. Appellant had the burden of proving title and right of possession. Bracey, president of the bankrupt, was the only witness respecting the al- . leged arrangement with appellant. His testimony, taken with all inferences most strongly in favor of appellant, was to the effect that at Aurora, Ill., appellant's home, he gave appellant new security for the part of the debt that was not canceled by the transfer of property at agreed values; that, for the price then paid by the cancellation of so much of the debt, he (for his company) orally transferred the title to the shovel and other items to appellant; that appellant sent an agent to Ohio to invoice the property and take possession thereof (which, inferentially, was done); that appellant leased the shovel to witness's company; that appellant through an agent put a sign on the shovel "Leased from C. H. Smith"; and that the company's subsequent possession was as lessee. But in other parts of Bracey's examination, and in the testimony of other witnesses, there was ample basis for finding that Bracey was not in Ohio at the time of the alleged delivery of possession, that no agent of appellant came and took possession, that the bankrupt had continuous possession and control of the shovel, and that the sign was put on, if at all, so that appellant might claim the shovel in case attachments were issued. Testimony of the vice president, the secretary, and a director of the bankrupt that they knew nothing of the alleged sale, and that the shovel was listed with other property as a basis for credit, had to be put in the master's balance against the president's statement that there was a sale. Conflicts among appellant's witnesses as to the wording, size, and materials of the sign, together with the testimony of appellee's witnesses that in Indiana there was neither a sign nor traces thereof on the shovel, raised the question whether there had been a sign even while the shovel was being taken out of Ohio.

Complaint is made of the admission of Bracey's declarations out of court, without the proper foundation being laid therefor. The master's finding shows that it was not based at all upon this testimony, and the court in considering the exceptions is presumed to have acted only upon the competent evidence.

The decree is affirmed.