Page:Federal Reporter, 1st Series, Volume 8.djvu/222

 208 rEDBBAIi BEPOBTEB. �W. W. Chapman, for plaintiff. �Walter W. Thayer, for defendant. �Before Sawybr, C. J., and Deady, D. J. �Deady, D. J. This action is brought by the plaintiff, a citizen of Arkansas, against the defendant, a citizen of Oregon, to recover the possession of the undivided half of donation No. 49, sitnate in Polk coiinty, and containing 320 acres, and damages for the detention thereof, alleging that he is the owner of the same in fee, and entitled to the possession thereof in common with James F. Levins, the owner of the other undivided half of the property. �The defendant by his answer denies the allegations of the com- plaint as to the ownership of the premises, and the plaintiff's right to the possession thereof, and pleads title in himself and a former adjudication. �The case was tried before the district judge with a jury, who, under the direction of the court, found a verdict for the defendant. Thereupon the plaintiff moved for a new trial, which was argued before the circuit and district judges, and taken under advisement. On the trial the plaintiff gave evidence tending to prove that one William Pulton, in his life-time, was the owner of the premises, and that he died intestate in 1876, leaving a niece and nephew — the plaintiff and said Levins — as his sole heirs at law, who thereupon became and still are entitled to the possession of the same. �In support of the plea of former adjudication the defendant offered in evidence the judgment roll of an action brought on Febraary 29, 1875, in the circuit court of the state, for Polk county, by the guard- ian of said William Fulton, then aninsane person, against the defend- ant hereinj to recover possession of said premises, in which there was a verdict for the defendant, in December, 1876, and a judgment entered thereon on May 14, 1879, as and for December 10, 1875, and some years after the death of said Fulton, which, upon the objection of the plaintiff, was excluded from the jury on the ground that the court had no authority to order the entry of said judgment nunc pro tune, because (1) there was then no plaintiff in the action; and (2) the term at which the judgment should have been entered had passed by. See Or. Civ. Code, §§ 262, 265. �The defendant then gave in evidence, against the objections of the plaintiff, certified copies of a petition of J. L. CoIUds to the county court of Polk county, and filed therein on February 2, 1863, alleging that said Fulton "is laboring under mental derangement" and "suf- fering from neglect," and asking the court "to inquire into the mat- ��� �