Hickey v. Johnson

• Citation: 9 F.2d 498
• Decision Date: 04 November 1925
• Docket Number: No. 6878.,6878.
• Parties: HICKEY v. JOHNSON et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

9 F.2d 498 (1925)

HICKEY v. JOHNSON et al.

No. 6878.

Circuit Court of Appeals, Eighth Circuit.

November 4, 1925.

O. D. Olmstead, of Winner, S. D. (O. H. Graves, of Pryor, Okl., on the brief), for appellant.

Frank B. Burford, of Oklahoma City, Okl. (Burford, Miley, Hoffman & Burford, of Oklahoma City, Okl., and J. Read Moore, of Wewoko, Okl., on the brief), for appellees.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

VAN VALKENBURGH, Circuit Judge.

Appellant, plaintiff below, filed a bill of complaint in the District Court for the Eastern District of Oklahoma to enjoin appellees, defendants below, from proceeding with a suit in the district court of Seminole county, Okl., praying first that the defendants, with the exception of the defendant Crump, be cited for contempt and be enjoined from asserting any right, title, or interest in and to the premises described in the complaint, and from interfering with the plaintiff in the possession of said land and in the leasing thereof, or in locating oil thereon; that the defendant George C. Crump, as judge of the district court of Seminole county, be permanently enjoined from proceeding with the trial of the cause then pending in his said court.

The case at bar is based upon the action of the District Court for the Eastern District of Oklahoma, Equity No. 444, in sustaining a demurrer to a complaint filed by the United States against one Ben C. Burris and E. F. Jefferies and others, through whom the title of the appellant, Hickey, is deraigned, to cancel and hold void certain deeds from one Daniel Sam to said Burris and Jefferies to the northeast quarter of the southwest quarter, the southwest quarter of the southwest quarter, and the northwest quarter of the southwest quarter, all in section 1, township 7 north, range 7 east, Indian base and meridian, Seminole county, Okl.; it appearing that that court duly and regularly entered its judgment sustaining the demurrer to said bill of complaint upon its merits and dismissed the action. That suit was filed January 2, 1909, and judgment rendered December 9, 1912; from that judgment no appeal was taken. A subsequent bill was filed by the United States to cancel and set aside a mortgage executed by said Burris to one Thomas O'Brien involving the same lands; to this a demurrer was filed and sustained, and a similar judgment entered July 3, 1913. This second suit, however, except in so far as it reveals the course of litigation respecting this property, need not further be considered.

It is the claim of appellant that, through the judgment in the action between the United States and appellant's predecessors, the title to the said premises became fully and completely determined by the District Court for the Eastern District of Oklahoma, and cannot be relitigated in the suit now pending in the district court of Seminole county, Okl. The pleadings and judgment in the prior suit are not set out in this record, but it appears from the opinion of the trial judge that they were before and considered by him. From the pleadings before us, the facts concerning that litigation are not in dispute, except with respect to the ground upon which the court based its action in sustaining the demurrer, and we are able to consider the point urged as fully as though the proceedings were fully set out in the record. In their answer filed in this case the appellees admit the filing of the former suit on or about the 2d day of January, 1909, and say:

"Defendants admit that on or about the 2d day of January, 1909, there was filed in the District Court of the United States for the Eastern District of Oklahoma a bill of complaint in Equity No. 444, wherein the United States was plaintiff and Ben C. Burris, E. F. Jefferies et al. were defendants, wherein the United States of America sought an adjudication that the deeds aforesaid, purporting to have been executed to Ben C. Burris and E. F. Jefferies, be canceled, annulled, and altogether held for naught, upon the ground and solely upon the ground that, at the time of the pretended execution and delivery of the said deeds, patents conveying the said lands to the said Daniel Sam had not been executed by the Principal Chief of the Seminole Nation, or approved by the Secretary of the Interior, and that said deeds were void by reason of the provision in the Seminole Agreement that all contracts for sale, disposition, or incumbrance of any part of an allotment made prior to the date of patent shall be void. These defendants admit that a demurrer was filed to said bill by the said Ben C. Burris and E. F. Jefferies; that the said demurrer was for and upon many causes, as therein set forth, among others, that there was a plain, adequate, and complete remedy at law; that there was want of federal jurisdiction; that the complainant had no title to the character of guardians; that the complainant had no interest in the subject-matter of the suit; that complainant was not entitled to the relief prayed; that there was a want of indispensable parties, to wit, the allottees of the land, the title to which was sought to be quieted; that the bill was multifarious, and improperly confounded distinct demands, there being a misjoinder of parties defendant and a misjoinder of causes of action; that the complainant by its bill did not offer to do equity; that there is no equity in complainant's bill entitling it to relief; and that said bill did not state facts sufficient to constitute a cause of action, and for divers other causes to be stated at the hearing of the demurrer. These defendants admit that on or about the 9th day of December, 1912, the said court dismissed the said bill as to said defendants and as to said instruments."

The suit in the state court above mentioned was brought January 30, 1918, by the appellees Kissie Johnson, née Sam, and Lucy as plaintiffs, against the appellant and others, for possession of said land, for damages, and for the setting aside of the same and subsequent conveyances, on the ground that the said Daniel Sam, the ancestor of said appellants, was a full-blood Indian, by reason of which the above-described lands were restricted and not subject to alienation. With these allegations of the petition the appellant joined issue, but did not set up the defense of prior adjudication. The suit was tried in the state court and the verdict was for appellant and against appellees herein. Upon appeal to the Supreme Court of Oklahoma (88 Okl. 92, 211 P. 1036), that judgment was reversed upon grounds seriously forecasting the ultimate success of the plaintiffs in that suit, appellees herein.

Thereupon this suit was filed, upon the theory that all rights between the parties and their privies had previously been adjudicated by the District Court for the Eastern District of Oklahoma, and that it is the duty of that court to protect its judgment by enjoining the appellees herein from further asserting any title and right in conflict therewith, and by enjoining the state court from proceeding further in the premises. Appellees moved the court to suspend all further proceedings, and to stay action until the termination of the suit pending in the district court of Seminole county, their claim being that the former judgment was not an adjudication of the issues now presented in the state court; that, if it were, it should have been pleaded in the first instance, and, not having so pleaded, but having joined issue and proceeded to trial upon another theory of the case, the appellant herein waived all rights thereunder and cannot now be heard to assert the defense of res adjudicata. To this the appellant replied that, the case having been reversed and remanded for further proceedings in the state court, he now has the right, by amendment, to set up this defense, that the same has not been waived, and that he is entitled to apply to the federal court in which the original judgment was entered for the relief prayed in his bill.

The trial court was of opinion that the prior judgment, if invoked, would have operated to bar the pending action in the state court, but that appellant, by failure to plead it, by joining issue with appellees upon the cause of action asserted by them, and by filing a cross-petition, in which he asked the affirmative relief that the title to said land be quieted, had waived this defense, had submitted to the jurisdiction of the state court, and that that court, having thus acquired jurisdiction, should be allowed to proceed without interference. It therefore sustained the motion of appellees to stay proceedings and to suspend further action in the case at bar until the suit pending in the district court of Seminole county, Okl., is tried and finally determined, or until said state court shall relinquish jurisdiction thereof.

The appellant, Hickey, claims title to the land involved by mesne conveyances from the grantees, Burris and Jefferies. The other defendants impleaded in the suit in the state court also claim like interests, but are not parties to this appeal. The appellees Kissie Johnson and Lucy are paternal half-sisters and alleged to be the sole and only heirs of Daniel Sam, deceased, the original grantor. Daniel Sam was a citizen of the Seminole Nation, and equity suit No. 444 was instituted by the United States in its guardian capacity over the estates of its Indian wards. The relationship between the United States, complainant in that action, and Daniel Sam and his heirs is conceded to be one of mutuality and succession to the same rights of property. The appellee J. Read Moore is an attorney, and he and appellee Lack are alleged to assert some interest in the property through the said heirs of Daniel Sam. The deeds sought to be canceled and set aside in equity cause No. 444 are those from Daniel Sam to Burris and Jefferies, and the conveyances sought to be set aside in the action in the state court are these same deeds and...