Blackburn v. Morrison
| Decision Date | 12 July 1910 |
| Citation | 118 P. 402,29 Okla. 510,1910 OK 188 |
| Parties | BLACKBURN v. MORRISON et al. |
| Court | Oklahoma Supreme Court |
Under the federal appellate procedure in force in the Indian Territory before the admission of the state, where application for an appeal was made and allowed in open court during the term at which the judgment appealed from was rendered, the taking of the appeal is of the date of its allowance.
Under said procedure, although the record is not filed and the appeal docketed in the appellate court within the time fixed by rule of court, the same will not be dismissed, if the record has been filed and the cause docketed before the motion to dismiss is made.
A bill of exceptions not presented to the judge at the same term the decree is rendered or within a further time allowed by order of the court at that term, or allowed by standing rule of court and not allowed by consent of the parties, is, save under extraordinary circumstances, invalid.
Where witnesses are examined orally in court in an equity case, the testimony must be reduced to writing and made part of the record, or it will be disregarded on appeal.
Oral evidence introduced in chancery cases before the court may be made part of the record by having it taken down in writing in open court and by leave or order of court filed with the papers, by bill of exceptions, or by reducing the same to writing, and embodying it as a recital in the record of the decree.
The evidence cannot be reviewed for the purpose of ascertaining whether the same supports the decree, when not all the evidence upon which the decree was rendered has been brought into the record.
A promise accompanied with an intention not to perform it and made by the promisor for the purpose of deceiving the promisee, and inducing him to act, where he otherwise would not have done so, constitutes fraud.
In an action to cancel a deed alleged to have been procured by false and fraudulent promises, a specific averment that the grantee did not intend at the time he made said promise or contract to carry out the same is not necessary if from the facts alleged the existence of his fraudulent intent not to carry out his contract can be clearly inferred.
A party who permits the court to proceed to judgment without acting upon a motion made by him must be deemed to have waived his right to have the same acted upon; and this court will not consider an alleged error of the trial court in refusing to sustain a motion to strike out evidence, when the record does not affirmatively show that the motion was ever acted upon by the court and exceptions taken thereto by the complaining party.
Error from the United States Court for the Western District of the Indian Territory, sitting at Tulsa; William R. Lawrence Judge.
Action by Henry Morrison and another against A. F. Blackburn. From a judgment for plaintiffs, defendant brings error. Affirmed.
Defendants in error brought this action in the United States Court for the Western District of the Indian Territory prior to the admission of the state to cancel a certain deed. They allege in their amended complaint, filed in the court below on the 24th day of September, 1906, that they are the owners and in possession of the N.E. 1/4 of section 34, township 18 N range 13 E., in the Creek Nation, Ind. T.; that the land in controversy was allotted to their son, Ananias R. Morrison as the proportionate share of the lands of the Creek Nation to which he was entitled as a member of the Creek Tribe of Indians; that their said son is deceased; and that they are his heirs. They charge that the deed which they seek to cancel and which was executed by them to plaintiff in error, defendant below, on the 22d day of June, 1906, was procured by fraud. On the 19th day of October, 1907, before the admission of the state, the court rendered judgment decreeing said deed null and void, and ordering that the same be cancelled and set aside. From that judgment this appeal is prosecuted.
Randolph & Haver and Biddison, Campbell & Eagleton, for plaintiff in error.
Merritt Eslick and Carroll & Walker, for defendants in error.
HAYES J. (after stating the facts as above).
Before we proceed to examine the case upon its merits, it is necessary, to determine certain questions of practice which have been raised by defendants in error by motion to dismiss and by objections to the sufficiency of the record to authorize this court to review the evidence before the trial court, to determine the sufficiency thereof to support the judgment. After judgment was rendered on the 19th day of October, 1907, plaintiff in error at the same term on the 11th day of November, 1907, in open court, prayed for and was allowed an appeal. A supersedeas bond was executed and approved on said day and citation issued returnable in 60 days. The record, however, was not filed and the case was not docketed in this court until the 11th day of August, 1908, and it is contended that this court is without jurisdiction, because the appeal was not taken within six months from the rendition of the judgment in the court below. By virtue of section 18 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 277), the Supreme Court of this state has just such jurisdiction to review judgments rendered and entered in actions in the United States courts of the Indian Territory prior to the admission of the state, from which no appeal had been taken to the United States Court of Appeals for the Indian Territory as that court would have had, if it had not been dissolved by the advent of statehood (Moberly v. Roth et al., 23 Okl. 856, 102 P. 182); and appeals from such judgments to this court are governed by the appellate procedure in force in the Indian Territory prior to the admission of the state (Parks v. City of Ada, 24 Okl. 168, 103 P. 607; Riverside Oil & Gas Co. v. Tulsa Water, Light, Heat & Power Co., 24 Okl. 323, 103 P. 608).
They must be taken within six months from the date of the entry of the judgment sought to be reviewed (Porter et al. v. Brook, 21 Okl. 885, 97 P. 645; Moberly v. Roth et al., supra); but the appeal in the case at bar was taken within that time. Application therefor and allowance of same having been made in open court during the term at which judgment was rendered, the taking of the appeal is of the date of its allowance. Radford v. Folsom, 123 U.S. 725, 8 S.Ct. 334, 31 L.Ed. 292; Dodge v. Knowles, 114 U.S. 430, 5 S.Ct. 1197, 29 L.Ed. 144; Hewitt v. Filbert, 116 U.S. 142, 6 S.Ct. 319, 29 L.Ed. 581.
When an appeal shall be docketed in the appellate court after it has been taken is a matter generally regulated by rule of the court. It was so regulated in the Indian Territory. Rule 16 of the United States Court of Appeals of the Indian Territory (6 Ind. T. 14) makes all appeals, writs of error, and citations returnable not exceeding 60 days from the date of the signing of the citation, whether the return day fall in vacation or in term time, and be served before the return day. Rule 19 provides that in all civil cases when an appeal has been taken more than 90 days and a supersedeas bond has been filed and the appellant has not filed in the office of the clerk an authenticated copy of the record the appellee may at any time file in the appellate court a certified copy of the judgment appealed from, the order granting the appeal and the supersedeas bond, with motion to dismiss the appeal or affirm the judgment and the same will be dismissed or the judgment affirmed, unless good cause be shown against it. Where no provision was made by statute or by rule of court, proceedings in that court were governed by the practice in the United States Court of Appeals of the Eighth Circuit. Rule 22. The procedure theretofore governing appeals from the trial courts of the Indian Territory to the appellate court of that jurisdiction was partly controlled by statute and partly by rule of court, as is generally the case. An authorized rule of court regulating the practice before it and not repugnant to or in conflict with the organic law has all the force of law; and, until repealed or rescinded by the court, is as binding upon the court as a statute. Rio Grande Irrigation & Colonization Co. v. Glidersleve, 174 U.S. 603, 19 S.Ct. 761, 43 L.Ed. 1103; Thompson v. Hatch, 3 Pick. (Mass.) 512; 11 Cyc. 742. We think, therefore, that section 18 of the enabling act, conferring jurisdiction upon this court to review judgments rendered in the Indian Territory before the admission of the state, but not appealed from, just as the appellate court of that jurisdiction could have done if the state had not been admitted, continued in force for the purpose of such cases not only the appellate procedure prescribed by the statute, but that prescribed by rule of court; and the rule of court fixing the time when an appeal must be docketed in that court may be looked to to determine whether the case at bar should be dismissed because of irregularity in docketing same. The various federal Circuit Courts of Appeals have a rule similar to rule 19 of the United States Court of Appeals of the Indian Territory. Rule 16 of the Circuit Court of Appeals for the Eighth Circuit makes it the duty of an appellant to docket his case and file the record therein with the clerk of the court before the return day; and, if he fails to do so, the appellee may have the cause docketed and dismissed upon producing a certificate from the clerk of the court wherein the judgment or decree was rendered, stating the case, and certifying that such writ of error or appeal has been duly sued out or allowed. 11 C. C. A. cvi, 47 F. viii. This rule in the same or similar language exists in all the Circuit Courts and in the Supreme Court of the United States, but in the...
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