Hill v. Burnett

• Decision Date: 08 January 1918
• Docket Number: Case Number: 8078
• Citation: 69 Okla. 54,169 P. 1120,1918 OK 22
• Parties: HILL v. BURNETT.
• Court: Oklahoma Supreme Court

1918 OK 22

169 P. 1120

69 Okla. 54

HILL v. BURNETT.

Case Number: 8078

Supreme Court of Oklahoma

Decided: January 8, 1918

Syllabus

¶0 1. Appeal and Error--Settlement of Case- Made--Dismissal of Appeal

Where it is agreed that the case-made may be settled and signed by the judge at any time it may suit his convenience, such agreement necessarily authorizes the settling and signing of the case-made prior to the expiration of the time fixed for suggesting amendments, and an appeal will not be dismissed where the case-made is settled and signed--when there is such an agreement--prior to the time fixed for suggesting amendments.

2. Indians -- Allotment -- Contest--Sufficiency of Petition.

Where the action of the Secretary of the Interior is attacked in deciding a contest of an allotment, and in awarding a patent to allotted land, unless the averments of the petition in such action make it clearly appear that the Secretary of the Interior has made "a gross mistake of facts," or has committed some material error of law, or fraud was practiced upon him by the successful party, such petition fails to state a cause of action, and a demurrer thereto, upon such grounds, was properly sustained.

3. Same.

The petition in this case carefully examined, and held not to state facts sufficient to constitute a cause of action in favor of plaintiff and against the defendant.

Error from District Court, Washington County; R. H. Hudson, Judge.

Action by Alfred Dodge Hill, a minor, by Frank L. Hill, his guardian, against William James Burnett, a minor, by Bates B. Burnett, his guardian. Judgment for defendant, and plaintiff brings error. Affirmed.

W. A. Chase, Preston C. West, Roger S. Sherman, and A. A. Davidson, for plaintiff in error.

Smith & Walker and Burford, Robertson & Hoffman, for defendant in error.

COLLIER, C.

¶1 This action was brought by plaintiff in error against defendant in error, and involves the correctness of a decision by the Department of the Interior relative to a contest of an allotment of land in the Cherokee Indian Nation, and the award of a patent to the land in controversy. Hereinafter the parties will be designated as they appeared in the trial court.

¶2 We are first met with a motion to dismiss this appeal, upon the ground:

"That the case-made was settled and signed prior to the expiration of the time fixed for suggesting amendments, and that the defendants had not waived the right to suggest amendments, and were not present when the case-made was settled and signed."

¶3 The defendants acknowledge due and legal services, and--

"waived notice of the time and place of the presentation of the above and foregoing case-made to the judge of the district court, before whom said cause was tried for settlement and signing, and hereby agree that said case-made may be presented to the judge for settlement and signing, and be settled, signed, and allowed by said judge at any time when it may suit his convenience to do so."

¶4 It is contended by attorneys for defendant that this waiver was not a waiver of the time in which to suggest amendments, and with this contention we cannot agree. The agreement "that the judge might sign the case-made at any time it may suit his convenience" necessarily included a waiver of the time in which to suggest amendments, as otherwise the judge could not legally settle and sign the case- made until the expiration of the time for suggesting amendments, notwithstanding it was agreed that the case-made might be settled and signed at the judge's convenience. There is no merit in the motion to dismiss the appeal, and the same is denied.

¶5 The amended petition in this cause with its exhibits covers 141 pages of typewritten matter, and it is not thought necessary or advisable to incumber the record with a copy of the same.

¶6 The material averments of the petition are: That both the plaintiff and defendant are minors. That Frank Hill is the duly appointed, qualified, and acting guardian of the plaintiff. That Bates B. Burnett is the duly appointed, qualified, and acting guardian of the defendant. That both plaintiff and defendant are duly enrolled citizens by blood of the Cherokee Indian Nation, and as such entitled to receive an allotment of land of the Cherokee Nation. That the lands described in the petition do not exceed in value or extent the quantity of land that a Cherokee Indian Citizen may select in allotment. That the plaintiff has never selected or taken in allotment any land other than the lands described in the petition. That the plaintiff was entitled to select as his allotment in the Cherokee Indian Nation the lands described in the petition. That on the 5th day of November, 1906, and for some years prior thereto, that said lands were improved, and the improvements thereon owned by one James Fugate, a claimant to citizenship of the Cherokee Nation by intermarriage. That prior to said 5th day of November, 1906, said Fugate by formal application to the Commissioner of the Five Civilized Tribes, had selected said lands as his allotment in the Cherokee Nation, which selection was final and conclusive, subject only to the final enrollment of said Fugate as a citizen of the Cherokee Nation by marriage. That in November, 1906, the Supreme Court of the United States decided in the case of Daniel Red Bird et al. v. United States, 203 U.S. 76, 27 S. Ct. 29, 51 L. Ed. 96, that said Fugate was of that class of claimants that were not entitled to citizenship by intermarriage. That the application of said Fugate for enrollment as a citizen of the Cherokee Indian Nation was not finally rejected by the Secretary of the Interior until the 26th day of January, 1907. That on the 29th day of January, 1907, the Secretary of the Interior instructed the Commissioners of the Five Civilized Tribes to revoke the two following regulations:

"It is hereby ordered that any such intermarried applicant may appear at the Cherokee land office at any time before the application for his enrollment is finally disposed of by the Commissioner and the department, and upon proper showing will be permitted to designate the land now held as his prospective allotment as the allotment of some citizen member of his family entitled to an allotment of land in the Cherokee Nation: Provided, however, that the intermarried applicant must show that the person in whose favor he desires to invoke this order is a member of his immediate family or a dependent living with him for whom he has the right and duty to obtain a suitable allotment of land.

"It is further ordered that when an intermarried applicant has appeared before the Commissioner and designated the land now held by him as his prospective allotment as the allotment of some member of his family or dependent living with him, as above set forth, said land will be arbitrarily allotted by the Commissioner to such citizen member of his family or dependent.

"It is further ordered that the terms of this order will not apply to lands involved in contest proceedings at the date hereof."

"The Commissioner will recognize a transfer entered into in good faith by any such intermarried applicant prior to his rejection by the Secretary of the Interior, whereby the improvements upon the land held by the intermarried applicant as a prospective allotment are transferred to a citizen of the Cherokee Nation entitled to take an allotment of lands in said nation, and upon the rejection of such intermarried applicant by the Secretary of the Interior the citizen vendee of such improvements may appear at the Cherokee land office of the commissioner at Muskogee, Ind. T., and select as his allotment the land formerly held by the intermarried applicant when such citizen vendee can produce a bill of sale evidencing the fact that the transaction was entered into in good faith prior to the final rejection of the intermarried applicant by the Secretary of the Interior."

--and directed there should be no restraint on the filing of applications for lands tentatively allotted to claimants to citizenship by intermarriage, and on the 6th day of February, 1907, the Commissioner to the Five Civilized Tribes announced that the so-called tentative selections of claimants to citizenship in the Cherokee Nation by intermarriage should be subject to selection by any duly enrolled citizen of the Cherokee Indian Nation entitled to take an allotment. That on the 6th, 7th and 8th of February, 1907, applications for allotments of this description were received, but that the Secretary of the Interior instructed said Commissioner to suspend until March 5, 1907, all orders of the department permitting the selection of land tentatively allotted to intermarried citizens by duly enrolled citizens. That on the 13th day of February, 1907, the Secretary of the Interior directed said Commissioner to restore all intermarried claimants to citizenship to the same rights which they possessed prior to the departmental order of January 29, 1907, so far as the rights of said intermarried citizens were concerned. That under the acts of Congress lands tentatively selected in allotments by claimants to citizenship by intermarriage were withdrawn from allotment after the 5th day of November, 1906, up to and including the 29th of January, 1907, except where said lands were applied for by a member of the family of said intermarried claimant who was a duly enrolled citizen, or where said lands were applied for by a duly enrolled citizen who had purchased the improvements thereon from an intermarried claimant. That the defendant herein lost his right to select said lands in allotment upon a so-called application made therefor on the 10th day of November, 1906. That the defendant was not a member of the family of said Fugate, nor had the defendant or any one for him purchased the improvements on said land from said Fugate. That accordingly said lands were withdrawn from allotment on said 10th day of November, 1906. That in pursuance of said order of...