Brown v. Anderson

• Decision Date: 24 October 1916
• Docket Number: 7416.
• Citation: 160 P. 724,61 Okla. 136,1916 OK 902
• Parties: BROWN ET AL. v. ANDERSON.
• Court: Oklahoma Supreme Court

160 P. 724

61 Okla. 136, 1916 OK 902

BROWN ET AL. v. ANDERSON.

No. 7416.

Supreme Court of Oklahoma

October 24, 1916

Syllabus by the Court.

The syllabus in Vandenberg v. Winne, 155 P. 245, is adopted herein.

After the expiration of the statutory time allowed for filing petition in error in this court, it cannot be amended by setting up new and distinct assignments of error, and where permission to amend has been given and a new assignment is set out in the amended petition in error, such assignment will be considered as having been inadvertently made, and will not be considered by the court.

One of the essential elements in the jurisdiction of a court is "power to adjudicate the particular question" presented for judgment. The state courts of this state have no power to authorize a conveyance of restricted Indian lands in contravention of the treaties and acts of Congress relating thereto.

A full-blood Indian, being a citizen of the United States, and of this state, has a right to sue in the courts of the state the same as any other citizen and, within the jurisdiction of such courts, may have his rights growing out of the treaties and acts of Congress relating to his land adjudicated, and such rights as may be protected at the suit of the executive department of the federal government may also be enforced in the state courts by an action instituted by the Indian in his own proper person.

Commissioners' Opinion, Division No. 2. Error from District Court, Jefferson County; Frank M. Bailey, Judge.

Action by Osborne Anderson against J. R. Brown and others. Judgment for plaintiff, and defendants bring error. Affirmed.

H. A Ledbetter and F. M. Adams, both of Ardmore, and D. M. Bridges and John Vertrees, both of Waurika, for plaintiffs in error.

Guy Green, of Waurika, and H. L. Westphal, of Antlers, for defendant in error.

GALBRAITH C.

The defendant in error, Osborne Anderson, a full-blood Chickasaw Indian, commenced this action in ejectment in the trial court against the plaintiffs in error to recover possession, and to cancel a conveyance of the allotment of Lottie Hihcha, who died in December, 1906, leaving him as her sole surviving heir. It was alleged in the petition that the conveyance for this inherited land, which he sought to have canceled, was void for the reason that it had been executed and delivered during his minority. There was a trial to the court and a judgment for the plaintiff, adjudging him to be the owner of the fee in the land, and entitled to possession and canceling the deed, and for damages in the amount of the rental of the land during the time the defendants had been in possession. To review this judgment an appeal has been prosecuted to this court.

Motion has been interposed to dismiss the appeal on the ground that there is no assignment in the petition to the action of the court in overruling the motion for new trial. It is argued in support of the motion that the only errors assigned in the petition in error are those occurring at the trial, and in order to bring them here for review it was necessary that a motion for new trial should be filed and acted upon by the court, and the action of the court in denying the motion assigned as error in the petition in error. The judgment appealed from was rendered in December, 1914. The case-made and petition in error were lodged in this court on June 5 1915. The motion to dismiss was filed July 1, 1916. It appears that on June 28, 1916, application for permission to amend the petition in error was filed, and that an order was made on July 5, 1916, granting such motion. The record as now presented has attached to the case-made a writing, bearing no file mark, entitled, "First amended petition in error," in which the first assignment of error is as follows:

"Because the trial court erred in overruling the motion of the plaintiff in error (defendant below) for a new trial."

It is insisted that the matter of allowing an amendment to the petition in error being discretionary with the court, and the amendment having been made, the motion to dismiss is not well taken, and should be denied. To that view we do not assent. We take it that the permission to amend the record was given pro forma, and that it was not contemplated at the time of giving such permission that any amendment would be made not permitted by the established practice in this jurisdiction, and that it was not intended by granting such permission to hold that the court could by such order extend the time for commencing proceedings in error, or that the plaintiff in error would amend his petition in error by assigning an entirely new assignment of error. Under the established practice in this court much liberality is shown in allowing amendments to the record in matters of form so as to make it speak the truth, but it has never been held, so far as we are advised, under an order permitting an amendment, that a new and distinct assignment of error was authorized. On the contrary, it has been held that the petition in error cannot be amended after the time has run for commencing proceedings in error by assigning a new assignment of error, for the reason that this would permit filing a new cause of action after the statute of limitation had run.

In McConnell v. Cory, 33 Okl. 607, 127 P. 259, it was said:

"In the absence of complaint of the action of the trial court in denying the motion for new trial, no cause of action is stated, and to allow such cause to be now stated would not be to grant an amendment, but would be virtually to enlarge the time given in the statute, and to assume a jurisdiction which has been denied, and no laches of either the defendant in error or his counsel could confer such jurisdiction. It is the duty of this court to discover its jurisdiction, and, where it is lacking, decline to exercise it. See Haynes et al. v. Smith, 29 Okl. 703, 119 P. 246, in which the questions presented by counsel for plaintiff in error are decided adversely to them."

It was clearly not intended by the court in granting permission to amend to enlarge the time given by the statute to commence proceedings in error. We therefore conclude that the plaintiffs in error were not authorized by the permission given to file the amended petition in error with the new and additional assignment as they have done, and therefore this assignment does not operate to bring up for review the questions brought up by such assignment when properly made.

As to the necessity of the assignment under consideration, in Vandenberg v. Winne, 155 P. 245, the court said:

"The plaintiff in error only complains here of errors that occurred during the trial of the cause, and this court has repeatedly held in a long line of well-considered cases that errors occurring during

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