370 F.2d 832
A. S. MOYER et ux., in Propria Persona, Appellant,
POPE & TALBOT, INC., a corporation, Appellee.
United States Court of Appeals Ninth Circuit.
Jan. 11, 1967.
A. S. Moyer, in pro. per.
Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, Or., for appellee.
Before MADDEN, Jjudge of the United States Court of Claims, and KOELSCH and DUNIWAY, Circuit Judges.
This appeal involves conflicting claims of A. S. Moyer and his wife, and Pope & Talbot, Inc., to moneys paid into the district court pursuant to a judgment of condemnation. The district court ordered the entire award distributed to Pope & Talbot. This was error.
Pope & Talbot, asserting an assignment and mortgage from the Moyers, cross-complained claiming any award growing out of the condemnation action. But the issue was never tried. Presumably the court concluded that the matter, being collateral to the main action, should be the subject of a separate trial. (Rule 42(b)). However, none was ever held. Consequently, the order lacks evidentiary support.
Nor can the order be justified on the basis of anything said by Moyer made a a pre-trial conference immediately preceding the order. True, Moyer made a number of statements at that time concerning his claim, but in none of them did he concede or acknowledge the money should all be paid to Pope & Talbot. To the contrary, he opposed Pope & Talbot's claim and insisted on a trial.
The order of distribution is vacated and the cause is remanded for appropriate proceedings.