McKnight v. Panther
| Decision Date | 18 November 1941 |
| Docket Number | 30094. |
| Citation | 120 P.2d 973,190 Okla. 127,1941 OK 386 |
| Parties | McKNIGHT v. PANTHER. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 16, 1941.
Application for Leave to File Second Petition for Rehearing Denied Jan 27, 1942.
Syllabus by the Court.
1. The income accruing to the headright of a member of the Osage Tribe of Indians having a certificate of competency, as long as title thereto remains in the Federal Government as trustee for said Tribe, is not subject to execution by his creditors even though a check therefor has been delivered to him.
Appeal from District Court, Osage County; Hugh C. Jones, Judge.
Proceeding in aid of execution by Belle McKnight against Clark Panther to require a disclosure of defendant's assets under 12 Okl.St.Ann. § 843. From an order vacating a prior order temporarily restraining defendant from disposing of or encumbering his assets until further order of court plaintiff appeals.
Order affirmed.
Frank T. McCoy, John R. Pearson, and John T. Craig, all of Pawhuska, for plaintiff in error.
J. F Murray, of Ponca City, for defendant in error.
The defendant in error, hereinafter referred to as defendant, is a half-blood Osage Indian with a certificate of competency that was issued April 30, 1920. On October 24, 1925, plaintiff in error, hereinafter referred to as plaintiff, recovered a judgment against him, which was affirmed by this court on appeal. Panther v. McKnight, 125 Okl. 134, 256 P. 916. By various executions and an order of revivor this judgment has been kept in full force and effect.
On September 16, 1940, plaintiff commenced this proceeding in aid of execution to require a disclosure of defendant's assets under section 480, O.S.1931, 12 Okl.St.Ann. § 843. Upon the sworn affidavit of plaintiff's attorney, the trial court issued an order directing the defendant to appear and answer concerning his property and assets and restraining him from disposing or encumbering any of his cash, property, or other assets pending said proceeding and until further order of the court. Said order was dissolved or vacated when it appeared at the hearing held pursuant thereto that the only property in the defendant's possession, other than his household furniture, was a check drawn on the United States Treasury and made payable to the defendant in the sum of $250, as the quarterly payment due him by virtue of his interest or headright in the common property of the Osage Tribe of Indians held in trust by the Federal Government under various Acts of Congress, Act of June 28, 1906, 34 St.L. 539; Act of March 3, 1921, 41 St.L. 1249.
Plaintiff has perfected this appeal, seeking a reversal of the trial court's order vacating the temporary restraining order. From his remarks and findings at the time he rendered said judgment, the trial judge seems to have been of the opinion that since the defendant's headright was restricted and could not be sold or encumbered to satisfy his debts, the income accruing therefrom was likewise restricted in the hands of the defendant and the court had no power to restrain him from disposing of said check or to compel him to apply its proceeds upon plaintiff's judgment.
The defendant argues that subjection of the proceeds of the check in question to execution would be tantamount or equivalent to encumbering or alienating plaintiff's headright and quotes portions of this court's opinions in Brenner v. Musgrove, 168 Okl. 247, 32 P.2d 740, and Denoya v. Arrington, 163 Okl. 44, 20 P.2d 563, to show that the latter cannot be done. Plaintiff concedes that under these decisions, the income accruing to the headright of a deceased Osage allottee subsequent to his death cannot be appropriated for the payment of his debts, and that a judgment creditor of an Osage Indian may not have a receiver appointed to sell his headright or collect the income accruing thereto, but she insists that neither of these propositions is applicable to the situation here presented. Both of the cases relied upon by the defendant involved future income from Osage headrights. The check involved in the present proceeding represents income that has already accrued to such a headright. It is clear from the opinions of the Federal Courts in Chouteau v. Commissioner of Internal Revenue, 10 Cir., 38 F.2d 976; Choteau v. Burnet, 283 U.S.
691, 51 S.Ct. 598, 75 L.Ed. 1353; and of this court in Leahy v State Treasurer of Oklahoma, 173 Okl. 614, 49 P.2d 570, affirmed 297 U.S. 420, 56 S.Ct. 507, 80 L.Ed. 771, that such income after it is fully received by a member of the Osage Tribe of Indians possessing a certificate of competency is free of all federal restrictions, is taxable, and is subject to the same burdens the law imposes upon the...
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