Butler v. Denton

• Citation: 150 F.2d 687
• Decision Date: 13 July 1945
• Docket Number: No. 3093.,3093.
• Parties: BUTLER v. DENTON et a
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

150 F.2d 687 (1945)

BUTLER v. DENTON et a

No. 3093.

Circuit Court of Appeals, Tenth Circuit.

July 13, 1945.

G. C. Spillers, of Tulsa, Okl. (W. N. Dannenburg, of Tulsa, Okl., on the brief), for appellant.

Forrester Brewster, of Muskogee, Okl., for appellees Denton, Mulley, and Washington.

Fred W. Smith, Atty., Department of Justice, of Washington, D. C. (J. Edward Williams, Acting Head, Lands Division, Department of Justice, of Washington, D. C., Cleon A. Summers, U. S. Atty., of Muskogee, Okl., and Roger P. Marquis, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee United States.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

Adam Scott, a full-blood Creek Indian, died intestate. His estate included lands and funds. The funds were in the custody of the Secretary of the Interior. George Scott and Mannie Scott were the parents of the decedent. They instituted in the County Court of McIntosh County, Oklahoma, a proceeding to determine the heirs of the decedent, pleading that they were his sole and only heirs. Jennie Kelly appeared in the proceeding and asserted that she was the child of the decedent, born out of wedlock but recognized by him in the manner required by the law of Oklahoma, and that on his death she inherited the whole of his estate. The county court determined that Jennie Kelly was the child of the decedent, and that she inherited the estate; on appeal, the district court determined that George Scott and Mannie Scott inherited the property; and the supreme court reversed the judgment of the district court and remanded the cause for further proceedings. Kelly v. Scott, 125 Okl. 208, 257 P. 303. Thereafter a duly executed stipulation of compromise and settlement, approved by the Secretary of the Interior, was submitted to the district court along with a proposed judgment. The judgment was entered, and it provided among other things that out of the estate of the decedent, there should be set aside unto George Scott and Mannie Scott the sum of $115,000, for their use and benefit, and upon the death of either of them the balance should be held and used for the use and benefit of the survivor, to be supervised and disbursed by the Superintendent of the Five Civilized Tribes in accordance with the rules and regulations governing the supervision and disbursement of restricted individual Indian funds; that George Scott and Mannie Scott should during their lives and the life of each of them have the use and occupancy of the homestead of the decedent; that all ad valorem taxes upon such homestead should be paid by the estate of Jennie Kelly; and that the residue of the estate of the decedent be awarded to Jennie Kelly. The fund was placed to the credit of George Scott and Mannie Scott and disbursements were made for their use and benefit in accordance with the judgment. Mannie Scott survived George Scott. She later became Mannie Mulley. At the time of her death there remained in the fund about $97,800.50. She left a will in which Mose Mulley and Billy Washington were the sole legatees. George Denton was appointed executor under the will, and Thomas Washington was appointed guardian of the estate of Billy Washington, a minor.

Jennie Kelly, now Jennie Kelly Butler, brought this suit in the District Court of Muskogee County, Oklahoma, against Denton, as executor of the estate of Mannie Mulley. By amended petition, Mose Mulley and Billy Washington were joined as defendants. Judgment was sought against Denton, as executor, for the balance remaining in the fund, and further judgment determining that all of the defendants had no right, title, or interest in such fund. It was alleged in the amended petition inter alia that the judgment rendered by the District Court of McIntosh County, as it appeared in the journal entry, was not the judgment actually entered; and that the judgment actually entered provided in substance that George Scott and Mannie Scott should have a life estate in the fund set aside for them, and that any balance remaining at the death of the survivor was the property of Jennie Kelly. It was further pleaded that plaintiff intended to file in the action in McIntosh County an application for an order nunc pro tunc to correct the judgment in that respect. And the petition was later filed.

This cause was removed to the United States Court for Eastern Oklahoma; the United States intervened; the defendants answered; and judgment was entered determining that the defendants Mose Mulley and Billy Washington were the owners of the fund and securities involved, subject to the supervision and disbursement of the Secretary of the Interior. 57 F.Supp. 656. Plaintiff appealed.

Error is assigned upon the denial of the motion to remand the cause to the state court. Section 3 of the Act of April 12, 1926, 44 Stat. 239, provides that a party to a suit in the state court in Oklahoma, to which a restricted member of the Five Civilized Tribes or the restricted heirs or grantees of such an Indian are parties, and claiming or entitled to claim title to or an interest in lands allotted to a citizen of such tribes, or the proceeds, issues, rents, and profits derived therefrom, may serve written notice of the pendency of such suit upon the Superintendent of the Five Civilized Tribes, and that within twenty days thereafter, or within such further time as the court may allow, the United States may remove the suit to the United States Court by filing in the state court a petition for removal. The act is complete within itself and authorizes the removal of a cause or proceeding coming fairly within the range of its provisions even though other independent grounds of federal jurisdiction are not present. Caesar v. Burgess, 10 Cir., 103 F.2d 503; United States v. Fixico, 10 Cir., 115 F.2d 389; Walker v. Spencer, 10 Cir., 123 F.2d 347, certiorari denied, 316 U.S. 692, 62 S.Ct. 1296, 86 L.Ed 1763; House v. United States, 10 Cir., 144 F.2d 555, certiorari denied 323 U.S. 781, 65 S.Ct. 270.

The defendants Mose Mulley and Billy Washington caused notice of the pendency of the action to be served upon the Superintendent of the Five Civilized Tribes in accordance with the statute; and the United States caused the action to be removed under the provisions of the act. Plaintiff, Jennie Kelly Butler, is an unenrolled Indian of less than full-blood; defendants Mose Mulley and Billy Washington are full-blood unenrolled Creek Indians; the fund to which these Indians presented rival claims of title and ownership is the proceeds of oil and...