Bruner v. Ft. Smith & W.R. Co.

• Decision Date: 23 October 1912
• Citation: 127 P. 700,33 Okla. 711,1912 OK 672
• Parties: BRUNER ET AL. v. FT. SMITH & W. R. CO.
• Court: Oklahoma Supreme Court

127 P. 700

33 Okla. 711, 1912 OK 672

BRUNER ET AL. v. FT. SMITH & W. R. CO.

Supreme Court of Oklahoma

October 23, 1912

Syllabus by the Court.

Where in a suit for 160 acres of land, defendant disclaims as to all but 49 acres thereof, to which it sets up title in virtue of alleged condemnation proceedings pursuant to act of Congress approved February 28, 1902 (Act. Feb. 28, 1902, c 134, 32 Stat. 43), which requires notice by the referees "to all persons interested," and where the notice given is "to all persons having any claim or any interest in said described premises of whatsoever kind or nature," without naming the plaintiffs who were conceded to be the owners thereof, held, that said notice was void and conferred no jurisdiction on the court, and that too, although the judgment approving the report of the referees recited that they "gave notice in the manner as provided by law."

Error from District Court, Okfuskee County; John Caruthers, Judge.

Action by Benjamin F. Bruner and another against the Ft. Smith & Western Railroad Company. Judgment for defendant, and plaintiffs bring error. Reversed and remanded for new trial.

J. A Baker, of Wewoka, and W. T. Banks, of Okemah, for plaintiffs in error.

C. E. & H. P. Warner, of Ft. Smith, Ark., and John B. Patterson, of Okemah, for defendant in error.

TURNER C.J.

On November 18, 1908, the plaintiff in error, Benjamin F Bruner, and Ellen N. Bruner, his wife, in the district court of Okfuskee county, sued the Ft. Smith & Western Railroad Company, defendant in error, in ejectment to recover the possession of the S.W. 1/4 of section 15, township 12 N., range 7 E., in that county. For answer defendant disclaimed as to all the land but 49 acres, as to which it set up title by virtue of certain condemnation proceedings in the United States Court for the Indian Territory, Western District, at Muskogee. All parties in interest concede that the 160 acres sued for was the allotment of Floyd McKindly Bruner, and that plaintiffs are the owners thereof as heir at law of him, and were up to the time of the entry of the judgment of the court approving the report of the referee therein. The judgment is assailed collaterally, and the only question for us to determine is whether the record in evidence in that proceeding discloses the same to be void on its face. In peremptorily instructing the jury at the close of all the testimony to find for defendant, the court held that such it was not, but therein the court erred. Said condemnation proceeding was prosecuted under an act entitled "An act to grant the right of way through the Oklahoma Territory and the Indian Territory to the Enid & Anadarko Railway Company, and for other purposes." After providing for the appointment of referees to assess the damages, section 15 provides that: "Before such referees shall proceed with the assessment of damages for any right of way or other land condemned under this act, twenty days' notice of the time when the same shall be condemned shall be given to all persons interested, by publication in some newspapers," etc. In attempting to comply with said requirement in said proceeding, defendant, after the appointment and qualification of referees pursuant to the prayer of its petition, published the following: "Notice. In the United States Court for the Indian Territory in the Western District at Muskogee. In the matter of condemnation of a part of the S.W. 1/4 of Sec. 15, T. 12, N. R. 7 E. I. M. by the Ft. Smith and Western Railroad Company, for railroad purposes. Notice is hereby given, that the undersigned referees duly appointed in the above entitled condemnation proceeding, will on the 28th day of Nov., 07, on the premises in question, proceed to assess the damages and make an award thereof, for the taking by the Ft. Smith and Western R. R. Co., the following described property for turn outs, side tracks and switches, to wit: [describing it.] The said award will be made between the hours of ten o'clock a. m. and two o'clock p. m. of said day, and all persons having any claim or any interest in said described premises of whatsoever kind or nature may at the time above mentioned appear before the undersigned referees, and be heard, if they so desire, touching their interest in the property and the damages to be awarded for the taking thereof. Given under our hands this 1st day of November, 1907. [ [Signed] J. L. Coons, Geo. A. Newman, J. W. Woods, Referees." This, by plaintiffs in error, it is contended is void because they say that, when the statute said that notice "shall be given to all parties interested," it meant that notice...