FINN V. HOYT.
83
lamation, as the same expressly exempted from sale "alliandsappropriatedby law for the use of schools, military, or other purposes." If the lands were valuable for mineral by section 2318, Rev. St. U. S., they had already been appropriated for other purposes, and consequently they were not within the proclamation of the president. Section 2318 of the Revised Statutes of the United States provides "that in all cases lands valuable for mineral shall be reserved from sale, except as otherwise expressly directed by law." If these lands were valuable for mineral, the defendant could have no title against the plaintiff, as the lands purchased by defendant Culver were not liable to purchase as agricultural land at time of the purchase. In such case, the title of the lands in defendants could not be held valid; because acquired against the law. Stoddard v. Ohambers, 2 How. 284. If the lands are valuable for mineral, and were knowingly purchased as agricultural lands, the patent issued by the would convey no title, because issued unadvisedly, or by mistake of an officer of the government while acting ministerially. In such a case, a court of equity will pronounce the patent void. U.S. v. Stone, 2 Wall. 525. It is clearly a case where the executive officer had no authority to issue the patent, because the lands were not subject to cash entry as agricultural land; Minter v. OrommeUn, 18 How. 87. If there was, no fraudulent concealment by Culver and Julian Rumsey, but, under the law, the lands were reserved from sale, the rule is well settled that the defendants obtained no title by their purchase; that the sale is absolutelyvoid. Morton v. NebrU8ka, 21 Wall. 660; Sherman v. Buwk, 93 U. S. 216; Stoddard v. Ohambers,8upra. The preponderance of evidence shows that the lands are valuable for mineral, and that the defendant Culver and Julian Rumsey, the ancestor of the other defendants, knew this fact at the time of the purchase of the land. Upon both legal grounds set out above, the patent must be held void, and a decree should be entered for the cancellation of the same, and it is so ordered.
FINN
v.
HOYT,
Commissioner.
(DtstrkJt Court, D. Alaska. May, 1892.) COllDllSSIONERS' COURT OF ALA.SlU.-JURISDICTION-MANDAMUs-OREGON STATUTES.
By section 5 of the act of May 17, 1884, providing a oivil government for Alaska, four commissioners are to be appointed, who shall exercise all the duties and pow· ers conferred on Justices of the peace under the general laws of Oregon, which laws in force at that time are adopted as the laws· of the district, so far as appli. cable. Code Civil Proc. Or. 2057, provides that a civil action in a Justice court is commenced and prosecuted to final judgment in the manner pronded for similar actions in courts of' record. Sections 1106 and 007 provide that justice courts are always open for the transaction of business, and that the rules of proceeding and evidence are the same as in courts of record. Section lI40 declares that, when jurisdiction is conferred on a court or judicial ofllcer, 1P.11 the means to carry it into that, if no method of proceeding is specified,any sui-table e:rrectare , mode or process may be adopted. He/,d, that where a commissioner's oourt has obtained jurisdiction of a. causEl,,1:>ut the ,oommissioner is absent on .the
84
FEDERAL REPORTER,
vol. 52.
day et,f6fittiit,:he to againbi'iIlg thepartie;a before him by Issuing on'hlsl'ilf!1sal to do so mandamU8, lie to c0!Il.-pel action a proper lookiIlg toW&l'l1s fl,nal judgment. '
by W. A.Finn for a writ of mandamus to compel W. 'R. Hoyt. United, States commissioner, to proceed with the trial of a cause. Granted.
TRUITT, District Judge. This is an application by the petitioner for a writ of mandamus to issue out of this court, directed' to said United States commissioner, cOplmanding him "to proceed, adjudicate, and exercise his judicial functions and discretion," in a certain action pending i? h.is jqdgment therein, and his junsdlCtlOn III saId actIOn untIl the same shall be legally dIsposed of by him." The as sfateq by are that on the 18th day of December, 1891, the petitionef, as plaintiff, commenced Rnaction in the saidUnited court at Juneau, in' this district, Milling Company, a private corpoagainst the ration, as defendant, for the ridpveryof the sum of $241.78; that on the same. day the action was ,. commenced a summons and -copy' of the cotnplaint ill said action were duly! served upon said defendant, requiring him to 'appear and answer said complaint, in the said court, on the 24th day of December, 1891. It furtber appears that for some reason no trial was had upon the day set therefor, but that thereafter the cause was continued from time to time, until January 9, 1892, "when, upon the application of defendant;" the cause was duly continued until March 4,1892, in order to enable' defendant to take the deposition of one William Ebner to be used by defendant on the trial of said action; that on said last-mentioned day this deposition had not been received by the court, and at the "request of delimdant's counsel plaintiff entered into stipulation with defendant," wbereby the action was again continued until the 7th day of April, 1892, on which day it was set for trial by the court; and thatsoOle time after this, and before the 7th day of .Stat,es "in obedience to the April, 1892, the said process issued out of the United States commissioner's court at Sitka, Alaska," left Juneau to appear there, and did not return home until the 8th day of April, 1892, the day after the one set for the trial of said action. Fromthese facts it appea,rs that the said commissioner was necessarily absent from his office on the day when this action shonld have been tried, but the plaintiff was there ready to proceed, and is certainly guilty of no laches in the matter. Upon tbisstatementof facts the petition alleges that by reason of said absence at Sitka on the said 7th day of said action,the day of April; 1892, the day appointed for the said UnitedStateacommissioner "refuses to further act in said case, and render some judgment therein," or otherwise legally dispose of the same. The organic act providing a civil government for Alaska, which was approved May 17, 1884, in section 5 thereof provides-
]'INN V. HOYT.
85
"That there shall be appointed, by the president, four commissioners in and for said distriet, who shall bave jurisdiction and powers of commissioners of the United States circuit courts in any part of said district, but who shall reside, one at Sitka. one at Wrangel, one at Ounalaska, and one at Juneau City. Such commissioners shall exercise all the duties and powers, civil and criminal, now conlerl'ed on justices of the peace under the general Jaws of the state of Oregon, so far as the same may be applicable in said district, and may not be iu conflict with this act or the Jaws of the United States." Thus by an act of congress the general laws in force at that date in the state of Oregon were adopted as the laws of the district of Alaska, so far as applicable and not in confEct with the act itself or the laws of the United States, and as that part of said act which confers the jurisdiction of justices of the peace of said state upon said commissioners is applicable in this district, and not in conflict with the organic act or the laws I)f the United· States, it is the law of the district; and we must therefore look to the laws of Oregon relating to justices of the peace for the jurisdiction, powers, and duties of these commissioners, when acting under or by virtue of the authority conferred by this part of said act, and, wherever the supreme court of said state has made decisions defining and prescribing them, such decisions shoul,l be received by said commissioners as the correct and binding interpretation of these la IVS. A justice's court in Oregon is one of inferior and limited jurisdiction, ,deriving all its powers and authority by statute, without any of the presumptions in favor of the regularity of its proceedings which are indulged in favor of a court of record, and for these reasons it is necessary to ex.amine the statutes to ascertain what its powers and duties are. Section 2051, Code Or., is as follows: "The civil jurisdiction of justices' courts, and by whom and where and how holden, is prescribed by title 4 of chapter 11 of the Code of Civil Procedure." In this title it is provided as follows, in sections 906 and 907 thereof: "Thero are no particular terms of such court, but the same is always open to the mode of proceeding prescribed for the transaction of business, for it. The mode of proceeding and the rules of evidence are the same in a justice's court as in a like action or proceeding in a court of record, except where ('the wise specially provided." And section 2057 provides that"A civil actiOn in a justice's court is commenced and prosecuted toftnal de· termination, and jUdgment enforced therein, in the manner prOVided in the Coda of Civil Procedure for similar actions in courts of record, except as in ·t1lis act otherwise provided." . Now, it would hardly be claimed that a court of record in Oregon, having obtained jurisdiction of a cause, would lose the same by death, resignation, or absence of the judge of such court, and the last-named section gives a justice's court the same power to maintain its jurisdiction that a court of record has; except when otherwise provided. . But the Bame question that is raised in this case has been before the supreme eourt of Oregon in the case. of Knapp v.King, 6 Or. 243, where it is de-cided that, as a justice's court is always open for the transaction of busi-
86 ne$IJ, whim it once"
li'EDERALREPORTER t
jurisdiction of the $U'bjebt-'inatter of an acIilo. court to exer,cise such until it is tioJl, there is terrpinateq in some legal manner. In a late case (Soythern Pac. Co. v. reported in, ()r. 459, 26 Pac. Rep. 304" this decision is a pproved. In this caSe II. judgment, in form, was entered in the justice's court,but it proved to be void for want of jurisdiction of the person of the aefendant, and the court vacated it, took up the original complaint, set a day for trial, and issued another or alias summons, and proceeded thereafter to render judgment against the defendant, who took a writ of review t() the .circuit c.ourt, which said court dismissed, and the defendI\nt appealed to the supreme court. But the action of the circuit court was sustained I\nd its decision affirmed. In closing the decision, LORD, J., says: "It is clear. then, both on authority and principle, that the power of the justj!J& W!lS not exhausted or the case terminated, put that he was authorized to is.8u. summons and acquire jurisdiction. of the defendant, which when, continued until the case was disposed of legally." Butin the case presented by this application the court not only has jurisdietion of the subject-matter of the action, but also of the defendant, who appears to have been in court, and took measures to secure the deposition oCB'certain witness on its behalf at one time, and at another time asked and secured a continuance of the cause, and for aught that apany tiDie, upon reasonable notice, to appear and proceedwith the trial. I think the petitioneris entitled upon the showing made iIi the petition to have a WI'it of mandamus is!'ued to the commissioner's court, directing it to take some action in the case named therein, andproceedaceording to,law to dispose of the same in some way. CodeOr.§ 598, and also Wood on Mandamus, page 19, where it is stated: "'rllis W l'it lies to compel the performance of ministerial acts, and is also addressed to sQbordinate judicial tribunals, requiring them to exercise their judicial functions by rendering some jUdgment in cases legally before them, where there would be a failure of justice from a delay or refusal to act." As an act of courtesy to the lower court, and to ascertain the facts more fully, I would have ordered the issuance of an alternative writ; but Judge UQ;)'tllPpeared by when the petition was presented in court, and it is admitted that the therein are true, and that, astAere has been a doubt in his ll)ind as to his authority and jurisdiction in the matter, a ruling of this court upon the same is desired, aJ;ld tllat with as little· delay expense ,to ,parties as possible. In the now pending in the. lower court,! think section 940 of the ,it ample (to bring the parties before it: Oregon "When is by the organic power of this state, or by this Code (lr on orjudicjalof;ll.cer, all the means to carry it into,l"ll'ectRl'tl given; and, in the .exercise of the jurisdiction, if the course of be not, speCifically pointed out by tbisCode, any suitable processor mode of proceedIng may be adopted which may appear most conformable to the spirit of this Codo." ",
DWYER V. ST. LOUIS & S. F. R. CO.
87
I think, under this provision, the court below might issue a. notice requiring the defendant to be present at a. certain hour of some day named, and not less than 6 nor more than 20 days from the date and service thereof, and stating that at said time said action would be taken up by said court and disposed of according to law. The writ ofmandam'U8 will therefore be issued as in the petition prayed for.
DWYER
et ale
t1.
ST. Lours & S. F. R. Co.
(Circuit Court, W. D. Arkansas. June 29, 1892.) 1. TRIAL-INSTRUOTIONS-DIREOTING VERDICT.
If a Case is one which fairly depends npon the e1fect or weight of evidence, a court has no righUo withdraw the case from the jury, unless the testimony be of such a conclusive oharacter as to compel it, in the exercise of a sound judicial discretion, to set aside a verdict in opposition to it. The court may direct a verdict for ,the de· fendant, if the evidence goiven at. tbe trial, with all the inferences that the jury could justifiably draw from it, is inSUfficient to support· a verdict for the plainti1f, so tbat such verdict, if returned, must be set aside.
2.1IUsTER AN)) SERVANT-CONTRIBUTORY NEGLIGENOE-DANGBROUS l'REHISBll-NOTIOE.
A ,ard master in the service of a railroad company is not required to quit the serVlce of such company,orfail or refuse to perform the work devolving upon him, althongh, he knew of the dangerous condition of the company's Car yard, provided the same was not so far dangerous as to threaten immediate injnry, or the condition of the car yard was not so dangerous but that the yard master, as a reasonably prudent man,. could come to a well-gronnded conclusion that. he could. aafely perform hilf duty for the henel1t of I\is employer. It the above conditions exist, and the ,ard master is killed in the discharge of his duty, without contrlbutoryfault on his part, his wife and children may recover of the company. The federal courts are not bound by a clause in' the COde of a state with regard to the duty of courts to direct a jury to make special fiJ;ldings. , COURTS-DIRECTING SPBOIAL FINDINGs-FOLLOWING t:lTATE STATUTES.
8., FBDBRAL
,. 'EJWESSIVE llAMAGEs.
A court cannot interfere with a verdict of a jury on the grounu of excessive damages, unless the damages are so excessive as to lead to the conclusion that the;same is the :fruitof passion or prejUdice. To warrant a conclusion of that kind, the damages must oe shocking to the sense of justice, or it must be manifest that the same are unreasonably large: .
At Law. On motion for a new trial. Rogers k Read, for plaintiffs. B. R. Davidson, for defendant.
Denied.
PARKER, District Judge. Suit against defendant by plaintiffs, as the wife and children ofJames Dwyer, deceased. Recovery prayed for on the ground that defendant negligently caused the death of James Dwyer, employe of defendant, in the capacity of yard master, at Ft. Smith, Ark. Jury trial had. Verdict for plaintiff for $17,820. Defendant, by its counsel, files a motion for new trial. The first ground of said motion is that the court erred in overruling defendant's motion to require plaintiffs to elect on which count of complaint they would rely. There is no error in this action of the court. The. plaintiffs relied 011 a atate of 'negligence created by defendant. They simply set· out in the
