Kennedy v. Pawnee Trust Co.

• Decision Date: 06 February 1912
• Docket Number: Case Number: 1634
• Parties: KENNEDY v. PAWNEE TRUST CO. et al. *
• Court: Oklahoma Supreme Court

1912 OK 133

126 P. 548

34 Okla. 140

KENNEDY v. PAWNEE TRUST CO. et al. *

Case Number: 1634

Supreme Court of Oklahoma

Decided: February 6, 1912

Syllabus

¶0 1. APPEAL AND ERROR--Review--Questions of Fact. Where, in a trial before the court, special findings of fact are made which are reasonably supported by the testimony, such findings will not be disturbed on the weight of evidence.

(a) This rule applies with particular force where the evidence of the successful party is all presented by the witnesses in open court, testifying through an interpreter, while the material testimony of the unsuccessful party is all given in the form of depositions.

2. TRIAL-- Exclusion of Competent Evidence. It is not error to exclude incompetent and irrelevant testimony.

3. APPEAL AND ERROR--Review--Presumptions. Where, in the trial of a case before the court without the intervention of a jury, incompetent testimony is admitted together with other testimony that is competent to the material issues, this court will not reverse the findings or judgment of the trial court, unless it appears that the court in reaching its decision relied on such incompetent evidence.

4. QUIETING TITLE -- Evidence -- Sufficiency. Testimony examined, and held sufficient to support the findings of the trial court.

5. WITNESSES--Impeachment--Character of Witness--Competency of Evidence. Testimony as to the general reputation for virtue and chastity of a witness is incompetent and improper.

* Appealed to the United States Supreme Court.

May, 1912, Decided

Error from District Court, Hughes County; John Caruthers, Judge.

Action by Earl M. Kennedy against the Pawnee Trust Company and others to quiet title to real estate, and for other relief. Judgment quieting in the Pawnee Trust Company, and plaintiff brings error. Affirmed.

O. A. Morton, for plaintiff in error.

Warren & Miller, for defendants in error.

SHARP, C.

¶1 This controversy arises between the grantees of William Barnett, the alleged nephew of Stephen Reed, deceased, the allottee of the lands in question, and John Baker, the alleged uncle of said Stephen Reed.

¶2 The testimony of Jincy Barnett, grandmother of William Barnett, and Socer Barnett and Elizabeth Barnett, her sisters of the half-blood, was offered on the part of the plaintiff; that of John Baker, Josie Yarhola, William Lowe, Josiah Looney, and Tucker Barnett, on the part of the defendants. The primary question determined below and necessary to be determined here is that of the marriage of Jimson Reed and Jincy Barnett. The testimony on this issue was conflicting. The case, without objection, was tried by the court.

¶3 Among other findings of the court is the following:

"The court finds that Jincy Barnett was not the wife of Jimson Reed, and that William Barnett is not the nephew or related at all to Stephen Reed, and that William Barnett has not, and never had, any right, title, or interest in or to the allotment of Stephen Reed, and that the plaintiff, Earl M. Kennedy, as the grantee of said William Barnett, or otherwise, has no right, title, or interest in or to the said allotment of Stephen Reed, hereinafter described. The court finds that Stephen Reed was a full-blood Creek Indian, and that there was allotted to him certain lands in the Creek Nation; that his sole and only heir at law is the defendant John Baker; that the said John Baker is a brother of Jimson Reed, the father of the said allottee, Stephen Reed; that as the sole heir of Stephen Reed the said John Baker became the owner by inheritance of the said allotment of the said Stephen Reed; that on the 9th day of August, 1907, the said John Baker conveyed to the Pawnee Trust Company, defendant herein, 120 acres of said allotment."

¶4 The first question presented is whether there is evidence reasonably tending to support the findings of the trial court. If so, such findings will not be disturbed on the weight of the evidence. This renders necessary a review of the testimony. Jincy Barnett testified: That Jimson Reed was her husband and Lydia their daughter. That Stephen Reed was a son of Jimson Reed. That Lydia Reed married Wilson Harry, and William Barnett was their child. That she was married to Jimson before Lydia was born. That she was also married to Charley Sullivan under the Indian law. That her first husband was Boston McGil-bray, a negro, by whom she had several children. Charley Sullivan was a mixed blood, Indian and negro. After witness and Jimson separated, she married Jack Barnett. Was married to Jim Barnett before the Civil War, and had one child named Lizzie Vann. Ned Holmes, a negro, was the father of her child, Caesar Holmes. Was also married to John Simmer or Johnson, who was the father of Lummie. Jimson Reed was a full-blood Creek Indian, as was John Simmer. When she began living with Jimson, she was living in a house by herself near her father's. Jimson gave her money to buy what she needed, and she cooked and washed for him. Jimson worked for her father and slept in the little house with her, where she had lived all her life.

¶5 Socer Barnett testified: That she knew William Barnett, son of Lydia Reed. That Lydia Reed was the daughter of Jincy Barnett and Jimson Reed; had two other children, Stephen and Martha. That Jimson Reed and Jincy Barnett lived together as man and wife about the time Lydia was born. That Jimson was a full-blood Indian. That William Barnett's father was Wilson Harry. He and Lydia Reed lived together a short time, about the date of William's birth. That Jincy was a grown woman when Socer was born. That she, Jincy, was about two years younger than Jimson. That Jincy never lived with Jack Barnett; did not know who Mary Holmes' father was. Jincy never lived with Ned Holmes, nor with John Simmer. Jincy and Jimson lived together until the child was born, and while Jimson was working for her father, some four years, and during the time she got a child. When he quit working for her father, he went about four miles south, near Alabama, and lived with a woman named Amogee. Before the Civil War the witness lived in the Choctaw Nation, and came back to live with her father about 1866; had a conversation with John Baker, who did not deny that Jimson and Jincy had been married.

¶6 Elizabeth Barnett testified: That Lydia Barnett was William Barnett's mother, and that Lydia Reed's father was Jimson Reed. That Jimson Reed and Jincy Barnett lived together as man and wife, and were so living when Lydia was born. Jimson Reed had another child, named Stephen. That she was about twelve years old, big enough to beat "softkey," at the time of the War, while Jincy was a grown woman with three children at the beginning of the War. That Jincy lived with Boston McGilbray before the War. Did not know Charley Sullivan, and did not know her sister ever lived with Jim Barnett, but that Jack Barnett was the father of her child Mary, and they were at her home when the child was born. That Jincy lived with John Simmer who was the father of Lummie. That Jincy also lived with Ned Holmes, who was the father of Caesar. That "Jimson and Jincy married just like we all married, the way I was married. They just took up and lived together. When I visited Jincy, I would see Jimson Reed at her house."

¶7 On the part of the defendants, the witness John Baker testified: That he and Jimson Reed were brothers, and that Pafna was their father. That Stephen Reed was a son of Jimson Reed, but that Stephen Reed's mother was Astonardy, who was mar-tied to Jimson Reed about four years after peace was declared after the War. That Jimson and Astonardy lived near Alabama, and were both full-blood Indians. When Jimson came back from the War, witness was living at the home of Ward Coachman at Alabama, north of Wetumka, and that Jimson continued to live there in that settlement afterwards. That Jimson belonged to the House of Warriors of the Creek Council, and was considerably older than the witness. Lived in the neighborhood about six years, when he was killed in a drunken brawl. That at the time of his death he was living with Astonardy. That at about the close of the Civil War Jincy Barnett lived north of Weleetka, near Scipio Barnett's place, in a little log cabin. That Jinson and Jincy were not related, and that witness did not know thai they lived together as husband and wife, or that they were eve married. That Jincy Barnett was never married to anybody, and that Jincy and Jimson never lived together as man and wife, and were never so regarded. That Jimson Reed lived with an aunt named Hecheeska, an old woman. That he saw Jimson Reed occasionally when they visited. That he lived about five miles from where witness lived. That Jimson lived continuously with his aunt. That Jimson Reed was killed about one or two years before the Speicha Insurrection, some 21 years ago. That he did not know that Jincy Barnett ever lived as a married woman, or that she had a husband to take care of her. That, according to his own personal knowledge, no man ever lived with her. That he had not seen Jincy in a great many years, until recently, and that during the time he testified about, according to the Indian law of marriage, it was only necessary to have the mutual consent of the parties to live as man and wife.

¶8 Josie Yarhola testified: That she knew Jimson Reed in his lifetime, and, when he came back from the North after the Civil War, she was living at Greenleaf town. That Jimson Reed came back to the place where a man by the name of Espama Yarhola lived, right close to Alabama Square. That Jimson Reed married Astonardy, and lived near Alabama up until the death of Jimson Reed. That she knew Jincy Barnett, who lived at the place where Dick Barnett now lives. That she and Jimson Reed never lived together as husband and wife, but did not know whether the people considered them as husband and wife. Did not know how long after the Civil War it was that Jincy Barnett settled in that community.

¶9 ...