Bowling v. Beaver
| Decision Date | 23 September 1924 |
| Docket Number | 14482. |
| Citation | 229 P. 501,102 Okla. 286,1924 OK 765 |
| Parties | BOWLING et al. v. BEAVER et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where plaintiff in error fails to set forth in his assignment of error the specification of an alleged error of the trial court in the admission of evidence, and has failed to comply with rule 26 of this court, in separately numbering his specifications of error and in citing his authorities in support thereof, and has failed to set out the full substance of the testimony objected to, this court will refuse to consider such alleged error.
When in the proceedings in the trial court an intervener files a cross-petition against plaintiff in error, in which he sets forth a promissory note secured by mortgage upon the interest in the real estate involved claimed by plaintiff in error and seeks judgment on such note and foreclosure of such mortgage, and plaintiff in error pleads to such cross-petition by an unverified general denial only, such cross-petitioner was entitled to judgment on the pleadings.
Where plaintiff in error held possession of lands of an Indian allottee under void deed given before the expiration of the restricted period and after the expiration of such period such allottee deeds the land to another, the last-mentioned deed is not void as violating the champerty statutes.
When the United States has, within the restricted period, on behalf of certain heirs of an Indian allottee, begun proceedings in the courts of the United States to cancel certain deeds to their allotment given prior to the expiration of the restricted period, and judgment has been rendered canceling same, and the restricted period has expired, there is no lack of jurisdiction in the state court in a proceeding to partition such allotment among such heirs though the cause in the federal court may still be pending.
Appeal from District Court, Ottawa County.
Action by Frank Beaver and others against George E. Bowling and others. From judgment for plaintiffs, defendant Bowling appeals. Affirmed.
This action was begun in the district court of Ottawa county, Okl. It is connected with, and largely predicated upon, certain litigation which was begun many years ago in the federal court and has continued therein until the present time. There were numerous plaintiffs and defendants in the trial court but only two of these defendants appear here as plaintiffs in error, and from the record and briefs it appears that one of the plaintiffs in error, to wit, Miami Investment Company, is eliminated, leaving George E. Bowling as the sole plaintiff in error.
This action was begun in the district court of Ottawa county, on September 30, 1918, the plaintiff, Frank Beaver, with numerous others, having filed on that date their petition against George E. Bowling and numerous others, defendants. The suit is one having for its principal object the partition between the owners thereof of a certain allotment of land originally granted by the United States of America, to William Wea, a member of the Confederated Wea, Peoria Kas-kas-kia, and Pian-kas-shaw Tribes of Indians.
The original petition sets out in detail the issuance of the patent, the death of William Wea, the ownership by the plaintiffs of the allotment under the statute of descent and distribution, and alleges generally that the defendants claim some interest constituting a cloud on plaintiffs' title. It alleges: That the defendant George E. Bowling was in unlawful possession of said land for more than 15 years collecting the rentals thereon until May 4, 1914, on which date the Supreme Court of the United States, in a certain cause wherein George E. Bowling et al. were appellants and the United States was appellee (233 U.S. 528, 34 S.Ct. 659, 58 L.Ed. 1008), canceled and held void the deeds under which appellants claimed title. That after the rendition of the opinion in said cause, the defendant George E. Bowling took unlawful possession of said land and subleased part of the same, collected rents thereon, and permitted the erection of permanent buildings thereon, and is threatening to place other buildings upon said land. Plaintiffs claim that judgment should be rendered in their favor for $7,500, as the rental value of the land. They pray that a receiver be appointed to collect and hold the rents, and allege further that, pursuant to Act of Congress of June 25, 1910 (36 Stat. 855), and by virtue of his inherent power, the Secretary of the Interior of the United States determined and named the heirs of William Wea, deceased, among whom were the plaintiffs in that action. Plaintiffs pray that the findings of the Secretary of the Interior be held final and conclusive on the court, and, if not binding, then that the court determine the heirs and adjudge that plaintiffs own the allotment. They pray that plaintiffs have judgment for possession; that the court make an order partitioning said real estate in kind, and, if this cannot be done, that the land be sold and the proceeds divided; that a receiver be appointed; and that defendants be restrained from entering upon said land or collecting the rents.
To this petition the defendant George E. Bowling filed his answer, consisting of an unverified denial, coupled with the admission that he was in possession of the land mentioned. On November 18th, the defendant Bowling filed his separate amended answer, pleading first, a general denial; second, that on the 5th day of March, 1915, in a certain suit pending in the District Court of the United States for the Eastern District of Oklahoma, wherein the United States, as the representative of the plaintiff, was plaintiff, and the defendant Bowling was one of the defendants, judgment was rendered in favor of the defendant, holding that the Secretary of the Interior had no power to determine the question of heirship, and that none of the plaintiffs had title to the land involved.
On June 10, 1922, plaintiffs filed a supplemental petition showing certain changes in the situation of the plaintiffs as to their rights in the property by reason of death, assignments, etc. In this supplemental petition, it is further alleged that since the filling of the original petition, the Supreme Court of the United States, in the case of United States v. George E. Bowling et al., 256 U.S. 484, 41 S.Ct. 561, 65 L.Ed. 1054, on June 1, 1921, held and determined that the Secretary of the Interior had power to determine the heirs of William Wea, deceased, and that, pursuant to said opinion, the United States District Court for the Eastern District of Oklahoma, had rendered judgment in the cause, awarding the lands described to the heirs so determined by the Secretary of the Interior, and had rendered judgment against the said Bowling for the rental value of the said land. They renew their prayer for partition, claiming under said judgment of the District Court of the United States.
On July 15, 1922, the defendant George E. Bowling filed a third answer to the petition and supplemental petition of plaintiff, in which he alleged, first, a general denial; second, that he is in possession and claims to be the owner in fee of the land in controversy; third, a specific denial that plaintiffs have any interest in the land and that they are the heirs of William Wea; fourth, that the transfers mentioned in the petition are void, and denies that the Secretary of the Interior at any time determined the heirship, as set out in the petition; fifth, he prays that the court determine the interest of plaintiffs and defendants respectively in and to said land, and determine the exact interest of each, that the court make an order partitioning same and setting off to each party the interest found to belong to each party, and that defendant recover his costs.
On October 14, 1922, an order appointing a receiver was made and it appears that this order was by practical consent of all parties. In due course the cause came on for trial, and the court rendered judgment, making its findings of law and of fact. Upon the trial, plaintiffs introduced in evidence the judgment of the District Court of the United States, finding against the defendant, George E. Bowling, and introduced also the judgment of the Secretary of the Interior determining the heirs. To the introduction of the judgment of the United States court, the defendant Bowling objected, on the ground that he was intending to appeal from the decision, that the time for appeal had not elapsed, and the judgment had not become final. The judgment of the trial court and the findings of law and fact are voluminous, and we deem it unnecessary to advert to all the findings, but, in substance, the court held and adjudged that the defendant Bowling was entitled to a one-third interest in the lands in controversy, but that this land and the title of the said Bowling thereto, was subject to a certain mortgage to secure the payment of the sum of $5,000, together with interest and attorney's fees, which said mortgage had been given by the grantors of the defendant Bowling prior to the deed conveying to him such one-third interest. The judgment further appointed three commissioners to make partition of the land and report the same to the court. The judgment provided for an accounting as to rents and profits, and adjudged that all issues not thereby disposed of and determined be reserved for further adjudication, the settlement of same not being held necessary for the purpose of this decree, and this judgment and the cause as to such undetermined and undisposed issues is continued. These undetermined issues were of course the partition, the report of the commissioner thereon, the accounting, and the final judgment of the court. To this judgment the defendant Bowling...
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