McDonald v. Wilson

• Decision Date: 11 July 1911
• Docket Number: Case Number: 901
• Citation: 1911 OK 274,116 P. 920,29 Okla. 309
• Parties: McDONALD et al. v. WILSON.
• Court: Oklahoma Supreme Court

1911 OK 274

116 P. 920

29 Okla. 309

McDONALD et al. v. WILSON.

Case Number: 901

Supreme Court of Oklahoma

Decided: July 11, 1911

Syllabus

¶0 APPEAL AND ERROR--Review--Assignments of Error. Where the plaintiff in error fails to assign as error the overruling of the motion for a new trial in the petition in error, no question is properly presented in this court to review errors alleged to have occurred in the progress of the trial in the lower court.

Error from District Court, Wagoner County; J. H. King, Judge.

Action between Hugh McDonald and others and Charles Wilson. From the judgment, McDonald and others bring error. Affirmed.

W. T. Hunt, for plaintiffs in error.

Enloe V. Vernor, for defendant in error.

WILLIAMS, J.

¶1 Plaintiffs in error in their petition in error make the following assignments of error, to wit:

"(1) That the findings of fact and judgment in partition are not sustained by sufficient evidence. (2) That the findings of fact and judgment in partition are contrary to law. (3) That the court erred in finding that John Perryman and Randolph Perryman were legal heirs at law of Lizzie Harvey, deceased, and as such entitled to inherit of her land."

¶2 The finding made by the court is as follows:

"(1) That this suit was filed in this court on the 11th day of December, 1907, by plaintiff, in which he asks that the lands described in his petition be partitioned; that the defendants were personally served by summons; that thereafter the defendants, on the 7th day of February, 1908, filed their answer to said petition, to which plaintiff filed reply.

"(2) That Lizzie Harvey was a Creek freedwoman, and enrolled as such on the rolls of the Creek Nation, and that she died on or about the 22d day of July, 1899, intestate and without issue.

"(3) That the said Lizzie Harvey, on or about the 9th day of May, 1899, selected as her allotment the E. 1/2 of the S.W. 1/4 and the N.W. 1/4 of the S.W. 1/4 of section 24, Tp. 18 N., and R. 18 E.; and that she selected as her homestead the S.W. 1/4 of the S.W. 1/4 of said section, now Wagoner county, Oklahoma, and that a certificate of selection was issued to her on that date.

"(4) That on or about the 7th day of November, 1903, a patent to the above lands was issued to Lizzie Harvey.

"(5) That the said Lizzie Harvey, deceased, left surviving her, as her sole and only heirs at law, Charles Perryman, Alex S. Perryman, and Jackson Perryman, all brothers of the whole blood, and Hugh Perryman and Lizzie Smiles, nee Perryman, son and daughter of Perryman, deceased, a full brother of the said Lizzie Harvey; and also John Perryman, and Randolph Perryman, half-brothers of the said Lizzie Harvey, deceased.

"(6) That the said Charles Perryman, Alex S. Perryman and Jackson Perryman were each entitled to a one-sixth interest in and to said lands, that Hugh Perryman and Lizzie Smiles, nee Perryman, were each entitled to a one-twelfth interest in and to said lands; that John Perryman and Randolph Perryman were each entitled to a one-sixth interest in and to said lands.

"(7) That the plaintiff Charles Wilson, prior to the institution of this suit, purchased the interests of John Perryman and Randolph Perryman, or a one-third interest in and to said lands, and the defendants Hugh W. McDonald and Chas. F. McDonald, prior to the institution of this suit, purchased the interests of Charles Perryman, Alex S. Perryman, Jackson Perryman, Hugh

...