Kelley v. Mccombs

• Decision Date: 12 May 1909
• Docket Number: Case Number: 35
• Citation: 23 Okla. 867,102 P. 186,1909 OK 111
• Parties: KELLEY et al. v. MCCOMBS et al.
• Court: Oklahoma Supreme Court

1909 OK 111

102 P. 186

23 Okla. 867

KELLEY et al. v. MCCOMBS et al.

Case Number: 35

Supreme Court of Oklahoma

Decided: May 12, 1909

Syllabus

¶0 APPEAL AND ERROR -- Decree in Equity -- Review by Writ of Error. Under Act Cong. March 3, 1905, c. 1479, sec. 12, 33 Stat. 1081 (U. S. Comp. St. Supp. 1907, p. 208), providing that appeals and writs of error shall be taken from the courts of the Indian Territory to the United States Court of Appeals for the Indian Territory in the same manner as cases are taken by appeal and by writ of error from the United States Circuit Courts to the United States Circuit Court of Appeals, a decree in equity cannot be reviewed by writ of error.

Error from the United States Court for the Western District of the Indian Territory at Muskogee; William R. Lawrence, Judge.

Action by Sarah McCombs and others against Robert Kelley and others. Judgment for plaintiffs. Defendants bring error. Dismissed.

This action was originally brought by defendants in error against plaintiffs in error Robert Kelley and Frederick Severs in the United States Court for the Western District of the Indian Territory at Muskogee. By their petition they prayed the court for a decree adjudging them and Robert Kelley to be the heirs of one Semikee, a deceased Creek Indian, and, as such heirs, to be the owners of certain lands allotted by Semikee during his lifetime, and further prayed the court for a decree partitioning said lands among them and the defendant Robert Kelley. Plaintiffs in error Robert Kelley and Frederick Severs filed their answer, in which they allege that they claim no interest in the title to said property described in the petition of defendants in error, but set up title to said property in plaintiff in error Barney Lumpkin, and alleged that they are in possession and hold said lands under him. Barney Lumpkin thereupon, after leave of court granted, filed his plea of intervention, in which he prays that defendants in error take nothing by the action, and that he be given judgment decreeing him to be the sole heir of Semikee, deceased, and, as such heir, the sole owner of the land in controversy. The case was referred to a master for his report on the facts, and a report was by him made, which was confirmed by the court and judgment rendered in accordance with the prayer of the petition of defendants in error. Said judgment was rendered on the 14th day of September, 1907. Thereafter, on the 2d day of November, 1907, plaintiffs in error presented to Hon. William R. Lawrence, associate justice of the United States Court of appeals for the Indian Territory, their petition for a writ of error, which was allowed. The clerk of the district court of Muskogee county, as the successor of the clerk of the United States Court of the Western District of the Indian Territory at Muskogee, in obedience to said writ of error, on the 31st day of December, 1907, filed in this court a transcript of the record and proceedings had in the trial court.

Brook, Brook & Thurman, for plaintiffs in error.

Thomas & Foreman, for defendants in error.

HAYES, J.

¶1 This is an action in equity, brought and tried on the equity side of the docket of the United States Court for the Western District of the Indian Territory at Muskogee. Plaintiffs in error seek by writ of error to have the decree entered therein reviewed by this court.

¶2 In Porter et al. v. Brook, 21 Okla. 885, 97 P. 645, it was held by this court that subsequent to the approval of Indian Appropriation Act March 3, 1905, c. 1479, § 12, 33 Stat. 1081 (U. S. Comp. St. Supp. 1907, p. 208), appeals taken from the United States Courts of the Indian Territory to the United States Court of Appeals for that territory must be taken in the manner governing the taking of appeals and writs...