Schieffery v. Tapia

Thornton, J. The appeal from the judgment was not taken in time, and must therefore be dismissed.

It is said that the notice of intention to move for a new trial was not served and filed in time. The record shows that due service of the statement on motion for a new trial was admitted by the defendant’s attorney, and that this statement was allowed and settled by the judge, “both parties being present by their attorneys.” There is nothing in the statement to show that defendant’s attorney made any objection to the service of the notice of intention on admitting service of it or of the statement, or on the settlement of the statement, and under such circumstances it must be held that any fault in giving notice was waived. (See Hobbs v. Duff, 43 Cal. 486; Gray v. Nunan, 63 Cal. 220; Hibernia Soc. v. Moore, 68 Cal. 156.)

The motion to dismiss the appeal from the order denying a motion for a new trial must therefore be denied.

The action is ejectment. The land in controversy was listed to the state of California as lieu on the 13th of March, 1877, on an application and selection appearing to have been made by it on October 1, 1873. On the 31st of July, 1879, the patent of the state was issued to Willard B. Brown, and on the 17th of October, 1881, Brown conveyed to plaintiff. The above constitutes plaintiff’s chain of title. Defendant claims under a preemption settlement made in November, 1870, prior to the inception of any right on the part of the state.

The court instructed the jury as follows:—

“The patent put in evidence is dependent for its validity upon the legality and validity of the listing of the [186]land by the general government over to the state of California. If at the time it was so listed it had been pursuant to law reserved or withdrawn for the benefit of the Atlantic and Pacific Railroad Company, and such reservation or withdrawal was then in force, and the land had not been restored, the listing was an absolute nullity, and the patent from the state based upon it is void.”

An attempt was made by this instruction to attack the validity of the listing to the state, which is equivalent to a patent in passing to it the fee-simple. (R. S. U. S., sec. 2449; Frasher v. O’Connor, 115 U. S. 116; 10 Stats, at Large, 346.) This the defendant could not do without connecting himself with the United States, — the original source of title. To do this, under the claim of pre-emption which he here makes, he must show that he was at the time of the selection made by the state in privity with the United States. (Terry v. Megerle, 24 Cal. 627; People v. Stratton, 25 Cal. 242; Page v. Hobbs, 27 Cal. 483; Carder v. Baxter, 28 Cal. 99; Tyler v. Green, 28 Cal. 408; Megerle v. Ashe, 33 Cal. 90.) To establish this privity he must show that he was a duly qualified preemption er according to law, at the time indicated above, and had fully complied with the laws of the United States at the time existing requisite to acquire the right of pre-emption. (Page v. Hobbs, 27 Cal. 483; Megerle v. Ashe, 33 Cal. 74; Quinn v. Kenyon, 38 Cal. 500; Burrell v. Haw, 40 Cal. 377.) This he has not done. There is no evidence that he was not at the time of his settlement on the land in controversy the proprietor of 320 acres of land in some state or territory of the United States, or that he had not quit or abandoned his residence on his own land to reside on the public land. In absence of proof of these ‘facts, the defendant cannot be regarded as of the class of persons entitled to pre-empt.