Opinion
No. 531.
March 16, 1945.
John B. Tansil, U.S. Atty., of Billings, Mont., for plaintiff.
Lloyd A. Murrills, Wilbur P. Werner, and John J. Greene, all of Cut Bank, Mont., and Louis P. Donovan, of Shelby, Mont., for defendants.
Action by the United States of America against Glacier County, a political subdivision of the State of Montana, and others, wherein defendants F.E. Manley and another moved to dismiss and to strike certain matters contained in the complaint.
Motions overruled.
The Court has considered the briefs filed in the above entitled cause by counsel for the plaintiff and defendants Manley and wife in support of and in opposition to their motion to dismiss and to strike certain matters contained in the complaint.
After consideration of the pleadings and briefs, in the opinion of the court, the important question here is to determine whether the fee patent was issued on the application or with the consent of the Indian ward, Florence Samples Hall. It has been held by the Circuit Court of Appeals for the 9th Circuit that "consent is the crucial issue to be determined." United States v. Nez Perce County, Idaho, 95 F.2d 232, 235. The same rule was laid down in other similar cases decided in our own Circuit. Whether application was made or consent given by the patentee will depend upon the forthcoming evidence to be submitted at the trial, at which time the questions raised by the motion may be renewed. Good cause appearing therefor, the motions to dismiss and to strike by the defendant Manley and his wife and by Glacier County, both being identical, are hereby overruled and denied, with 20 days to answer upon receipt of notice hereof.