Carter Oil Co. v. Eli

• Decision Date: 22 November 1932
• Docket Number: 20110.
• Parties: CARTER OIL CO. et al. v. ELI et al.
• Court: Oklahoma Supreme Court

23 P.2d 985

164 Okla. 273, 1932 OK 747

CARTER OIL CO. et al. v. ELI et al.

No. 20110.

Supreme Court of Oklahoma

November 22, 1932

Rehearing Denied Feb. 28, 1933.

Dissenting Opinion March 3, 1933.

Application for Leave to File Second Petition for Rehearing Denied April 4, 1933.

Administrator of deceased full-blood Indian was appointed by the federal court of the Indian Territory and selected allotment and delivered certificate to the full-blood Indian heirs. Subsequently the Cherokee county court, which succeeded to the jurisdiction of the federal court of the Indian Territory upon admission of Oklahoma as a state, finally discharged the administrator. Thereafter the Adair county court issued letters of administration, the jurisdiction of such county court embracing territory in which allottee died prior to statehood, and approved conveyances by the full-blood Indian heirs.

Syllabus by the Court.

1. Law of case: The syllabus from Powell v. United Mining & Milling Co., 107 Okl. 170, 231 P. 307, is here adopted and made part of the syllabus herein, as follows: "Where the judgment of a lower court has been reversed by this court upon an appeal by proceedings in error and the case remanded to the lower court for a new trial, the lower court, upon the second trial, is required to follow, as the law of the case the judgment of this court therein rendered. On a second appeal in said case to this court, the decision of this court and rules of law by it announced in its opinion on the first appeal constitute the law of the case as to all points decided in the first opinion, but this is not a cast-iron rule incapable of relaxation in any event. On a second appeal to this court, it may review and reverse its former decision in the same case, where it is satisfied that gross or manifest injustice has been done by its former decision, and will do so where the mischief to be cured far outweighs any injury that may be done in the particular case by overruling a prior decision, and especially where the party benefiting from the erroneous judgment, and in full reliance thereon has not surrendered substantial and valuable rights which cannot be restored by the court."

2. In the present case, it is clear that the title to the property in controversy was vested by good and valid deeds in defendants Glass and Calvert, and the right to develop the land for oil purposes was legally vested in the Carter Oil Company, who have assigned their interest to the Tidal Oil Company, and that the decision of the district court of Nowata county, rendered in this cause on July 2, 1925, is correct, and the decision as originally rendered is hereby affirmed. The opinion delivered by this court in this case on April 19, 1927, reported in 126 Okl. 12, 257 P. 761, is hereby set aside and overruled and withdrawn, and the case as originally decided is affirmed. The judgment of the district court of Nowata county from which the present appeal is taken and rendered on September 12, 1928, is hereby reversed and set aside, and all the costs of the proceedings will be taxed to the original plaintiffs and to T. P. Wilson, administrator of the estate of T. C. Wilson, and to R. E. Tucker, and such costs as have accrued since G. A. Wilson and Fannie C. Wilson became parties will be taxed to them also in conjunction with Taylor Eli, James Eli, Charlotte Chuculate, T. P. Wilson administrator of the estate of T. C. Wilson, and R. E. Tucker.

Appeal from District Court, Nowata County; Wayne W. Bayless, Judge.

Action by Taylor Eli and others against the Carter Oil Company and others. Judgment for the defendants was reversed on a former appeal, and the cause remanded for further proceedings not inconsistent with the opinion (126 Okl. 12, 257 P. 761). From a judgment decreeing an accounting in the original case, the defendants appeal.

Judgment appealed from reversed; former opinion overruled and withdrawn; and the original judgment in favor of the defendants affirmed.

See, also, 23 P.2d 1011.

Rehearing denied; RILEY, C.J., and WELCH, YOUNG, and RICE, JJ., dissent.

J. Wood Glass, of Nowata, F. A. Calvert, of Saginaw, Mich., Y. P. Broome, of Tulsa, W. P. McGinnis, of Bartlesville, and James A. Veasey and L. G. Owen, both of Tulsa, for plaintiffs in error.

John Barry, of Oklahoma City, and Reynolds & Williams and Linebaugh & Pinson, all of Muskogee, for defendants in error.

KORNEGAY, J.

This is a proceeding in error to review the action of the district court of Nowata county, decreeing an accounting in the original case of Taylor Eli et al. v. Carter Oil Co. et al., No. 5204 in said court. That case came to this court on proceeding in error to review the action of Judge Baskin, who held that the plaintiff Taylor Eli and his coplaintiffs and T. C. Wilson, with whom they had made a contract to bring the suit, and R. E. Tucker, were not entitled to the land involved, which was 80 acres of ground described as the E. 1/2 of the N.E. 1/4 of Sec. 8, Tp. 28 N., R. 15 E. This was what was known as a dead claim; that is, the allottee died after September 1, 1902, but before the allotting officers made the allotment. It was allotted in the name of Nancy Eli, who was a daughter of Taylor Eli and a sister to James Eli and a half-sister to Charlotte Muskrat.

In order to secure an allotment for a dead person, it was necessary that some one should be appointed as administrator to make the selection; otherwise it was selected by the allotting commission. The applicable provisions are an Act of Congress of July 1, 1902, which was ratified by the Cherokee people on August 7, 1902; the provision being as follows: "That the allotment thus to be made shall be selected by a duly appointed administrator or executor. If, however, such administrator or executor be not duly and expeditiously appointed, or fails to act promptly when appointed, or for any other cause such selection be not so made within a reasonable and proper time, the Dawes Commission shall designate the lands thus to be allotted." Section 20.

These provisions can be found in the 32 U.S. Stat. at L., pages 716, 718. In accordance with a prevailing practice at the time, for the purpose of selecting the allotment, an administrator was appointed by the United States court for the Northern district of the Indian Territory, sitting at Tahlequah. He selected the allotment, made final report to the court of having done so, and on August 27, 1906, that court made order, which, omitting caption, is as follows:

"Order of Court.

And this cause coming on to be heard by the Court upon the final report of the administrator and the report and recommendations of the Master in Chancery thereon, and the Court being fully advised in the premises doth order and adjudge that said report of the Master in Chancery be, and the same is hereby approved.

It is ordered that upon filing proper receipt from Taylor Eli for the certificates of decedent's allotment, or upon making proper proof that the same have been delivered to him, the administrator be discharged, his bondsmen released and the estate closed upon the payment of costs.

Done at a regular term of said Court, this Aug. 27, 1906.

Luman F. Parker, U.S. Judge."

The inventory returned by such administrator was verified April 17, 1905, and filed April 20, 1905, and showed the entire property of decedent to be the E. 1/2 of the N.E. 1/4 of Sec. 8, Tp. 28 N., R. 15 E., here in controversy, and N.W. 1/4 of the S.E. 1/4 of Sec. 18, Tp. 18 N., R. 24 E. The first tract is located in Nowata county; the second in Adair county. The administrator's final report, verified August 7, 1906, filed August 27, 1906, showed that the certificate of allotment had been delivered to the heirs, and there was nothing further for the administrator to do. Order of final discharge was made October 22, 1908, by the county court of Cherokee county; the order, omitting caption, being as follows:

"Order of Final Discharge.

Whereas, On the 27th day of August, 1906, Hon. Luman F. Parker, Judge of the United States Court for the Northern District of the Indian Territory, made an order discharging the above named administrator, on the filing of the allotment certificates for the allotment of the said Nancy Eli, deceased, and whereas said administrator files on this day the deeds from the Cherokee Nation and the United States Government for the said allotment in this Court.

It is therefore adjudged, ordered and decreed by the Court that the said Administrator be, and he is hereby discharged as administrator of said estate and his bond exonerated pursuant to the order hereinbefore referred to.

Given under my hand this the 22nd day of October, 1908.

J. T. Parks, County Judge."

The record that was before this court on the first appeal, case No. 17106 (126 Okl. 12, 257 P. 761), has been read in its entirety. Also the briefs have been read, and the opinion of the court deciding that case, which appears in the present case-made. It appears therefrom that the district court of Nowata county held that the conveyances that were approved by the county court of Cherokee county in 1924, relied on by the second grantees, Wilson and Tucker, were invalid, and that the conveyances approved prior thereto by the county court of Adair county were valid, and this court reversed its action and held that the proper court to approve a deed in this case was the county court of Cherokee county. The conveyances covered the land and the right to the extracted oil. The effect of that reversal was to change the title to the land, and along with it to create a liability of the oil operators, who had been operating the land since 1916, to account to the administrator of T. C. Wilson, deceased, and to R. E. Tucker, who were...