Bruno v. Getzelman
| Decision Date | 11 June 1918 |
| Docket Number | 8929. |
| Citation | 173 P. 850,70 Okla. 143,1918 OK 364 |
| Parties | BRUNO et al. v. GETZELMAN et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Under the provisions of section 4759, Rev Laws 1910, in all actions allegations of the execution of written instruments or of any power or authority shall be taken as true, unless the denial of the same is verified by the affidavit of the party or his attorney.
The conveyance of a portion of the allotment of a member of the Citizen Band of Pottawatomie Indians of Oklahoma in excess of 80 acres, approved by the Secretary of the Interior under the terms of Act Cong. Aug. 15, 1894, c. 290 (28 Stat. 286) extinguishes the Indian title, and the grantee holds such lands free from any restrictions upon alienation.
A patent thereafter issued to such grantee containing the provisions set forth in Act Cong. Feb. 8, 1887, c. 119 (24 Stat. 388), to the effect that the United States does and will hold the land for the period of 25 years, in trust for the sole use and benefit of the Indian or in case of his decease of his heirs, according to the laws of the state or territory where such land is located, and at the expiration of said period the United States will convey the same by patent to said Indian or his heirs as aforesaid, in fee discharged of said trust and free of any charge or incumbrance whatsoever, does not have the effect of reimposing restrictions upon the alienation of said lands by said grantee.
A "collateral attack" on a judgment is an attempt to avoid or deny its force and effect in some incidental proceeding not provided by law for the express purpose of attacking it.
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Collateral Attack.]
A finding of the jurisdictional facts in a domestic judgment is conclusive in a collateral attack upon such judgment attempting to again put such facts in issue.
Commissioners' Opinion, Division No. 1. Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.
Action by John A. Bruno and another against M. C. Getzelman and another. Judgment for defendants, and plaintiffs bring error. Affirmed.
Baldwin & Carlton, of Shawnee, for plaintiffs in error.
M. W. Janes, of Seminole, and Chas. E. Wells and Abernathy & Howell, all of Shawnee, for defendants in error.
This action was commenced by John A. Bruno and Mary Bruno, the plaintiffs below, against the defendants to recover the possession of 80 acres of land in Pottawatomie county, damages for withholding possession, for mesne profits, to quiet title to said lands in plaintiffs, and to cancel and set aside two decrees in foreclosure affecting said lands. It was alleged in the petition of plaintiffs that they were the owners in fee simple of the lands and entitled to immediate possession thereof; that plaintiffs acquired title to said lands by virtue of a patent issued therefor to Mary Bruno by the United States under date June 22, 1904, under the provisions of Act Cong. Feb. 8, 1887, c. 119 (24 Stat. 388), Act Cong. March 3, 1891, c. 543 (26 Stat. 1020). The petition further alleges that on February 12, 1910, M. A. Milner recovered a judgment in the superior court of Pottawatomie county decreeing the foreclosure of a mortgage upon said lands and ordering said lands sold to satisfy said judgment. Plaintiffs allege that no service of summons was had upon them or either of them, and that they did not enter their appearance in said action or authorize the same to be done, and that said judgment was null and void and of no force and effect. The petition further alleges that on June 4, 1910, the defendant M. C. Getzelman recovered a judgment in the superior court of Pottawatomie county against the plaintiffs decreeing the foreclosure of a mortgage upon said land executed by plaintiffs and ordering a sale of said lands to satisfy said judgment. Plaintiffs allege that no summons was ever served upon them in said action, and that they did not enter their appearance in said action or authorize the same to be done, and that said judgment is void and of no effect. The petition further alleges that at the time of the execution of the mortgages and the rendition of said judgments they were members of the Citizen Band of Pottawatomie Indians and the said lands were restricted lands, that plaintiffs had no capacity to alienate said lands by deed or mortgage, and that said judgments are therefore null and void.
The defendant M. C. Getzelman filed an answer in effect a general denial. The defendant B. C. Getzelman filed his answer and cross-petition, denying generally the allegations of the petition, and pleading affirmatively the judgments set up in the petition of plaintiff, the sale of said lands thereunder, the execution and delivery of sheriff's deeds therefor to M. C. Getzelman, and a conveyance by M. C. Getzelman to him. Said answer further alleges that said lands were originally patented by the United States to John A. Bruno, a Pottawatomie Indian; that thereafter, on March 19, 1903, said John A. Bruno for $1 and other valuable considerations conveyed said lands to his wife, Mary Bruno, and thereafter, on November 21, 1903, said deed of conveyance was approved by the Secretary of the Interior, and that title to said lands passed and was transferred by reason of said conveyance and said approval from John A. Bruno to Mary Bruno, his wife; that, by the execution of said deed and the approval thereof by the Department of the Interior of the United States, pursuant to acts of Congress, all the right, title, and interest of the United States in and to said lands and all restrictions upon the right to alienate or incumber the same was extinguished, and said lands became alienable; that thereafter the said Mary Bruno, joined by her husband, John A. Bruno, executed the mortgages foreclosed in the actions upon which the judgments set up in the petition were rendered. The answer thereupon prayed that title of said defendant to said lands be quieted, and that he be adjudged and decreed to be the owner in fee simple thereof.
The plaintiff replied to said answer and cross-petition, denying generally the allegations therein contained. This reply was not verified. Both the plaintiffs and the defendants moved for judgment on the pleadings. The trial court overruled the motion of plaintiffs and rendered judgment upon the pleadings in favor of the defendants. The plaintiffs here seek to reverse this judgment.
The lands in controversy were a part of the allotment of the plaintiff John A. Bruno, a member of the Citizen Band of Pottawatomie Indians in Oklahoma. The allotment was made pursuant to Act Cong. Feb. 8, 1887, c. 119 (24 Stat. 388) and Act Cong. March 3, 1891, c. 533 (26 Stat. 1019). Under the provisions of the act of Cong...
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