McKay v. Rogers

• Citation: 82 F.2d 795
• Decision Date: 04 April 1936
• Docket Number: No. 1318.,1318.
• Parties: McKAY v. ROGERS et al.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

82 F.2d 795 (1936)

McKAY v. ROGERS et al.

No. 1318.

Circuit Court of Appeals, Tenth Circuit.

April 4, 1936.

William Neff, of Tulsa, Okl. (A. T. Lewellen, of Tulsa, Okl., on the brief), for appellant.

N. A. Gibson and Richard H. Wills, both of Tulsa, Okl. (James C. Denton and John Rogers, both of Tulsa, Okl., on the brief), for appellees.

Before LEWIS and BRATTON, Circuit Judges, and KENNEDY, District Judge.

KENNEDY, District Judge.

On the 12th day of April, 1928, the appellant, as plaintiff in the court below, instituted a suit in the District Court of Creek county, Okl., alleging that she was the sole heir of one Ullie Eagle, an enrolled full-blood Indian of the Creek Nation who had died intestate, and that she, the plaintiff, was the legal and equitable owner and entitled to the immediate possession of certain real estate of which Ullie Eagle died seized; that the defendants were in possession of said real estate and had produced large quantities of oil and gas therefrom which they had appropriated to their own use and benefit. The prayer of the petition was for the possession of said premises and damages in the sum of $7,500,000. On May 10, 1928, the defendants named in said petition filed their motion to require the plaintiff to make her petition more definite and certain and on the same day said answering defendants issued notice of the pendency of said action to the United States of America through the superintendent of the Five Civilized Tribes, accompanied by a transcribed copy of all the pleadings and papers in said suit. On the 15th day of May, 1928, said notice was served upon the superintendent of the Five Civilized Tribes. On June 2, 1928, the court entered an order for good cause shown, giving the United States twenty days additional time in which to plead. In the meantime the defendants in said action filed their joint and several answer and cross-petition in the case. On the 22d day of June, 1928, and within the twenty days allowed, the United States, through its Assistant District Attorney for the Northern District of Oklahoma, filed its petition for removal of the cause, making the statutory averments as to the plaintiff being a restricted member of the Five Civilized Tribes and as to the character of the title of the deceased Ullie Eagle in the lands sought to be recovered. On the same day the District Court of Creek county entered its order removing said case to the United States District Court for the Northern District of Oklahoma. On March 11, 1930, upon application of the Assistant District Attorney, plaintiff's counsel being present, the United States District Court allowed the United States thirty days from said date in which to plead. On April 23, 1934, counsel for plaintiff and defendants filed a written waiver of jury trial. On April 5, 1935, the plaintiff filed a motion to remand the cause to the District Court of Creek County, which was on the 8th day of April following overruled and denied. On April 9, 1935, the case came on for trial resulting in the court making findings of fact and conclusions of law, and entering a judgment in favor of the defendants. The United States did not file a pleading in said cause or participate in the trial. From this judgment, the plaintiff appeals on account of alleged errors committed by the trial court, presented in her assignments of error.

The first contention urged by the plaintiff as appellant here is, that because the United States never became a party to the suit, the United States District Court had no jurisdiction to try the case and that it should have been remanded to the State court. This contention involves the statute under which the removal proceeding was undertaken. This appears in the Act of April 12, 1926, 44. Stat. 239, 240, in which section 3 of said act is applicable, reading as follows:

"Any one or more of the parties to a suit in the United States courts in the State of Oklahoma or in the State courts of Oklahoma to which a restricted member of the Five Civilized Tribes in Oklahoma, or the restricted heirs or grantees of such Indian are parties, as plaintiff, defendant, or intervenor, and claiming or entitled to claim title to or an interest in lands allotted to a citizen of the Five Civilized Tribes or the proceeds, issues, rents and profits derived from the same, may serve written notice of the pendency of such suit upon the Superintendent for the Five Civilized Tribes, and the United States may appear in said cause within twenty days thereafter, or within such extended time as the trial court in its discretion may permit, and after such appearance or the expiration of said twenty days or any extension thereof the proceedings and judgment in said cause shall bind the United States and the parties thereto to the same extent as though no Indian land or question were involved. Duplicate original of the notice shall be filed with the clerk of the court in which the action is pending and the notice shall be served on the Superintendent for the Five Civilized Tribes or, in case of his absence from his principal office, upon one of his assistants, and shall be served within ten days after the general appearance in the case of the party who causes the notice to be issued. The notice shall be accompanied by a certified copy of all pleadings on file in the suit at the time of the filing of the duplicate original notice with the clerk and shall be signed by the party to the action or his or her counsel of record and shall be served by the United States marshal and due return of service made thereon, showing date of receipt and service of notice. If notice is not served within the time herein specified, or if return of service thereof be not made within the time allowed by law for the return of service of summons, alias notices may be given until service and return of notice is had and in no event shall the United States be bound unless written notice is had as herein specified: Provided, That within twenty days after the service of such notice on the Superintendent for the Five Civilized Tribes or within such extended time as the trial court in its discretion may permit the United States may be, and hereby is, given the right to remove any such suit pending in a State court to the United States district court by filing in such suit in the State court a petition for the removal of such suit into the said United States district court, to be held in the district where such suit is pending, together with the cerified copy of the pleadings in such suit served on the Superintendent for the Five Civilized Tribes as hereinbefore provided. It shall then be the duty of the State court to...