Myers v. Berry

• Decision Date: 27 July 1895
• Citation: 1895 OK 45,3 Okla. 612,41 P. 580
• Parties: WESLEY MYERS v. WILLIAM E. BERRY.
• Court: Oklahoma Supreme Court

1895 OK 45

41 P. 580

3 Okla. 612

WESLEY MYERS v. WILLIAM E. BERRY.

Supreme Court of Oklahoma

Decided: July 27, 1895

Error from the District Court of Payne County.

Syllabus

¶0 1. JURISDICTION--Construction. Jurisdiction is the power to hear and determine the subject matter of the controversy, and to exercise judicial power over the parties, and when this power is absent, in either case, the court is without jurisdiction. When the court has no jurisdiction of the subject matter either party to the suit may avail himself of the objection at any stage of the proceedings, and whenever the court takes jurisdiction of the subject matter, it will, of its own motion, or, when its attention is called to the fact, refuse to proceed further and dismiss the case.

2. SAME--Must Affirmatively Appear. A court will reverse a judgment for want of jurisdiction, not only in cases where it is shown negatively that jurisdiction does not exist, but even when it does not appear affirmatively that it does exist.

3. SAME-Objection to May Be Made at Any Time. Jurisdiction of the subject matter is to be determined from the allegations of the petition, and if the petition fails to disclose such a state of facts as will authorize a court of equity to hear and determine the matters complained of, then such court is without jurisdiction, and the objection may be made on appeal after judgment by the party in whose favor the judgment is rendered.

4. TOWNSITE LAWS--Findings of Fact by Trustees Is Final Unless Proper Appeal Is Taken. The findings of fact made in a lot controversy by a board of townsite trustees appointed under the act of congress approved May 14, 1890, relating to townsites in Oklahoma, are final and conclusive unless on appeal to the proper departmental officers. The courts will not inquire into the facts or evidence upon which findings are based unless it is clearly made to appear that such findings were procured by fraud, imposition or misrepresentation to the manifest injury of the party complaining.

5. COURT OF EQUITY--Powers May Be Invoked, When. In order to authorize a court of equity to interfere with the final action of a board of townsite trustees appointed under act of congress of May 14, 1890, on account of a misapplication of the law by such trustees, the petition must specifically set out the findings of fact made by such trustees, in order that the court may determine whether or not the law was properly applied to the facts found by the trustees.

6. PLEADINGS--Petition Insufficient. A petition which seeks to annul the action of such a board of trustees in the final disposition of a lot, and which fails to set out the findings of fact upon which their action was based, and does not allege that there was any fraud, imposition or misrepresentation by which the petitioner was prevented from having a fair hearing, does not state such facts as will authorize a court of equity to interfere.

Frank A. Hutto, for plaintiff in error.

Neill & Clarke and Keaton & Cotteral, for defendant in error.

BURFORD, J.:

¶1 This is a suit in equity brought by Wesley Myers, the plaintiff in error, to charge William E. Berry, the defendant in error, as trustee of certain town lots, situated in the town of Stillwater, Payne county, Oklahoma territory. Issues were formed, trial had by the court, finding and judgment for the defendant. Myers appeals to this court and asks that said judgment be reversed. The defendant in error, in whose favor the judgment was rendered below, objects to the consideration of the cause for the reason that the district court had no jurisdiction of the subject matter of the controversy. No cross errors are assigned; but, inasmuch as the question of jurisdiction is the vital question in every case, we will first consider that question.

¶2 The amended complaint upon which the trial was had is as follows:

"In the district court in and for Payne county, Oklahoma Territory, April term, 1892.

"Wesley Myers, plaintiff, v. William E. Berry, defendant.--Amended Complaint.

"Now comes Wesley Myers, and, by leave of the court, being first bad and granted, amends his complaint heretofore filed herein, so that the same shall read as follows: 'Wesley Myers, plaintiff in the above entitled cause, for his complaint against the defendant, William E. Berry, states that he is a resident of said county, and that defendant is also a resident thereof; that on and prior to May 1, 1891, the north half of the northwest quarter, section 23, township 19, north of range 2, east I. M., and in said county and territory, was public land of the United States and was settled upon and occupied as a townsite, under the townsite laws of the United States; that on said 1st day of May, 1891, Daniel J. McDade, John H. Shanklin and William H. Merriweather, constituting Board No. 1 of townsite trustees, appointed by the secretary of the interior under an act of congress approved May 14, 1890, entitled "An Act to Provide for the Townsite Entries of Land in What is Known as Oklahoma, and for other purposes," as such trustees, entered said tract of land at the United States land office at Guthrie, Oklahoma, under the townsite laws of the United States, in trust for the several use and benefit of the occupants thereof, according to their respective interests therein; that plaintiff was on said May 1, 1891, and long prior thereto, an actual bona fide occupant and inhabitant of said tract, and is still such occupant and inhabitant of said tract, and that on or about the 20th day of January, 1891, plaintiff entered upon and occupied a certain piece and parcel of said tract of land as occupied as a townsite, and that said piece and parcel of said tract of land is now described as lots 1, 2, 3 and 4 of block 36, in the town of Stillwater, Payne county, Oklahoma Territory; that plaintiff has resided upon said lots continuously since the the 20th day of January, 1891, to the present time, and is now an actual bona fide resident thereon, and has the quiet and peaceable possession thereof and has so had since said 20th day of January, 1891, and during all said time he has claimed said lots in his own right and title, and is the equitable owner of said lots, sooner alleged.

"'That he is and has always been a citizen of the United States and was over twenty-one years of age at the time he settled upon said lots as aforesaid; that he did not enter upon nor occupy any portions of lands opened to settlement under the act of March 2, 1889, in violation of said act, nor of the president's proclamation issued thereunder prior to 12 o'clock noon, April 22, 1889; that on said 20th day of January, 1891, he built a house 12x16 feet, worth $ 35, on said lot, and inclosed said lots with a three wire and post fence worth, and of the value of $ 15, and has planted said lots to fruit trees; that on or about the 6th day of June, 1891, he submitted all the above facts and proof thereof to said board No. 1, of townsite trustees then in regular session for the hearing of such proof, and fully advised said board in the premises, and tendered to said board the due proportion and assessment levied against said lots by said board as the amount due said board in full for all their costs, charge, dues, assessments and compensations for entering, proving up, and deeding the same, and was then and there ready and willing and able to pay said sum and still is so; that notwithstanding the foregoing facts, said board No 1, of townsite trustees, violating their duties as such trustees and in utter disregard of the rights of this plaintiff did, on June 6, 1891, make, execute, acknowledge and deliver to said defendant a deed to lots No. 1, 2, 3 and 4, in block No. 36, in the town of Stillwater, Payne county, Oklahoma Territory, well knowing that this plaintiff was entitled to a deed for said lots, a copy of said deed is hereto attached, marked exhibit A, and made a part hereof; that defendant never resided upon or occupied or improved said lots in any way and that defendant was never an occupant or inhabitant of said townsite and that he holds said deed in trust for this plaintiff, but that said defendant has failed and refused and still fails and refuses to convey said lots to plaintiff, but claims to own the same in his own right and title adverse to plaintiff and that said claim so set up and asserted by defendant, and said deed so issued to him by said board are clouds upon plaintiff's title to said lots to his great damage and injury. Wherefore, he prays that said defendant be declared by this court a trustee for plaintiff and that he hold said lots and said deed in trust for him; that this defendant be compelled to convey by this court, a good and sufficient conveyance of all his right, title and interest in and to said lots, to this plaintiff, which he may have acquired by, through or under said deed so given to

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