United States v. M. E. Dibble

The United States brought this ejectment action against appellant Dibble to recover approximately 11 acres of land in the Lake Mendocino reservation area in California. Dibble answered, denying the charging averments of the complaint and asserting estoppel as an affirmative defense. After some preliminary procedural skirmishes, the Government moved for summary judgment. The motion was granted, and Dibble appeals from the ensuing judgment.

We reverse because the Government did not offer evidence sufficient to have sustained a finding that the County, under whose master “lease” Dibble held, was in breach of contract.

There is no dispute about the following facts: The United States owns the fee title to the land in issue. By written contract, the United States “licensed” the use of the land as part of a larger parcel to Mendocino County, pursuant to 16 U.S.C. § 460d. The County entered a subconcession license with one Mendoyoma, Inc., and Mendoyoma sublet the 11 acres to Dibble by written contract approved by the Army.

The Government claimed it was entitled to eject Dibble because it had terminated the County’s master license for breach of conditions stated in its licensing…

(concurring):

I concur in the judgment on the understanding that nothing in Judge Hufstedler’s able opinion disturbs the well-settled rule that affidavits not in compliance with Rule 56(e) may be considered by the trial court in the absence of an objection by counsel. Noblett v. General Electric Corp., 400 F.2d 442 (10th Cir. 1968); Auto Drive-Away Co. of Hialeah, Inc. v. Interstate Commerce Comm’n, 360 F.2d 446 (5th Cir. 1966); United States for the .use and Benefit of Austin v. Western Electric Co., 337 F.2d 568 (9th Cir. 1964) ; Klingman v. National Indemnity Co., 317 F.2d 850 (7th Cir. 1963); Mitchell v. Dooley Bros., 286 F.2d 40 (1st Cir. 1960); 6 J. Moore, Federal Practice ¶ 56.22 [1] at 2817-18 (2d Ed. 1966); 3 W. Barron & A. Holtzoff, Federal Practice § 1237 at 171-72 (Wright ed. 1958).

Inadmissible affidavits are no different from inadmissible evidence. They may be stricken in the discretion of the trial judge, but will support a judgment if he elects to consider them and no objection is made.

429 F.2d 598 UNITED STATES of America, Plaintiff-Appellee, v. M. E. DIBBLE, Defendant-Appellant. No. 23091. United States Court of Appeals, Ninth Circuit. July 6, 1970. Leo M. Cook (argued), A. B. Broaddus, Ukiah, Cal., for defendant-appellant. Jacques B. Gilin (argued) Asst. Atty. Gen., Shiro Kashiwa, Dept. of Justice, Washington, D.C., Spurr, Brunner & Nelson, Ukiah, Cal., James L. Browning, U.S. Atty., San Francisco, Cal., for plaintiff-appelee. Before BARNES, HUFSTEDLER, and WRIGHT, Circuit Judges. HUFSTEDLER, Circuit Judge: 1 The United States brought this ejectment action against appellant Dibble to recover approximately 11 acres of land in the Lake Mendocino reservation area in California. Dibble answered, denying the charging averments of the complaint and asserting estoppel as an affirmative defense. After some preliminary procedural skirmishes, the Government moved for summary judgment. The motion was granted, and Dibble appeals from the ensuing judgment. 2 We reverse because the Government did not offer evidence sufficient to have sustained a finding that the County, under whose master 'lease' Dibble held, was in breach of contract. 3 There is no dispute about the…