Norton v. Larney
Decision Date | 25 April 1923 |
Docket Number | 6164. |
Citation | 289 F. 395 |
Parties | NORTON et al. v. LARNEY. |
Court | U.S. Court of Appeals — Eighth Circuit |
J. L Hull, of Muskogee, Okl. (G. R. Horner, of Okmulgee, Okl., and N. A. Gibson and T. L. Gibson, both of Muskogee, Okl., on the brief), for appellants.
H. B Reubelt, of Eufaula, Okl. (E. J. Van Court and Clark Nichols both of Eufaula, Okl., on the brief), for appellee.
Before KENYON, Circuit Judge, and BOOTH and JOHNSON, District Judges.
This is a suit to quiet title to certain land in appellee (plaintiff below), to cancel a deed of the land made by some of the defendants to the defendant Norton, and to enjoin defendants from asserting any claim against plaintiff to the land. Upon the trial decree was entered for plaintiff.
In this court, for the first time, appellant challenges the jurisdiction of the court below. Nevertheless it is the duty of this court to consider the question of jurisdiction as in every case, and whether raised by the parties or not. C B. & Q.R.R. Co. v. Willard, 220 U.S. 413, 31 Sup.Ct. 460, 55 L.Ed. 521; Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 Sup.Ct. 42, 53 L.Ed. 126; Garvin v. Kogler (C.C.A.) 272 F. 442. It is conceded that there is no diversity of citizenship between the parties, but jurisdiction is rested upon the ground that the suit is one arising under a law of the United States.
The rules for pleading jurisdictional facts are well settled. The facts must be set forth in the plaintiff's complaint by distinct averment, and not by inference. They must be contained in a statement of the plaintiff's own cause of action, and not by way of anticipation of some defense. Shulthis v. McDougal, 225 U.S. 561, 32 Sup.Ct. 704, 56 L.Ed. 1205; Hull v. Burr, 234 U.S. 712, 34 Sup.Ct. 892, 58 L.Ed. 1557; Taylor v. Anderson, 234 U.S. 74, 34 Sup.Ct. 724, 58 L.Ed. 1218; Joy v. St. Louis, 201 U.S. 332, 26 Sup.Ct. 478, 50 L.Ed. 776.
It is not sufficient that title to land is claimed under a law of the United States, unless the suit really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends. Joy v. St. Louis, supra; Shulthis v. McDougal, supra; Scott v. First National Bank (C.C.A.) 285 F. 832; Earnhart v. Switzler, 179 F. 832, 105 C.C.A. 260.
Applying these rules to the complaint in the present case, we are of opinion that the averments were not sufficient to show jurisdiction. However, where the jurisdiction is not challenged by a pleading, but the question is raised for the first time in the appellate court, jurisdiction sufficiently appears if it is shown in any part of the record including the proofs. Robertson v. Cease, 97 U.S. 646, 648, 24 L.Ed. 1057; Sun Printing Ass'n v. Edwards, 194 U.S. 377, 382, 24 Sup.Ct. 696, 48 L.Ed. 1027; Horne v. Hammond Co., 155 U.S. 393, 15 Sup.Ct. 167, 39 L.Ed. 197; Doolan v. Carr, 125 U.S. 618, 8 Sup.Ct. 1228, 31 L.Ed. 844; Mahoning Valley Railway Co. v. O'Hara, 196 F. 945, 116 C.C.A. 495. From the pleadings and the proofs contained in the record in the present case, it clearly appears, and will be adverted to later, that plaintiff's claim is based upon one construction of the Act of March 3. 1905 (33 Stat. 1048), while defendant's claim is based upon a different construction of the same act. This made a federal question, and the court below had jurisdiction of the cause.
The land in question was an allotment pursuant to Act of Congress of March 1, 1901 (31 Stat. 861), made to a citizen of the Creek Tribe of Indians named in the deeds as Cheparney Larney. It is the claim of plaintiff that he is the person who was enrolled as a full-blood Indian on the Creek tribal rolls opposite roll No. 1287, and that he thereby became entitled to an allotment, and that he in fact received the allotment in question. It is the claim of defendants that the person who was enrolled was not the plaintiff, but a son of 'Big Jack,' one of the original defendants; that the son died about November, 1906, and that the defendants succeeded to the rights of said deceased son in the allotted land. A vital question in the case is therefore one of identity, and it involves the construction of the decision of the Commissioner to the Five Civilized Tribes granting and ordering the enrollment involved, and also of the statute under which the Commissioner was acting. The decision of the Commissioner is as follows:
'NC 1010.
OCH CM.
It is undisputed that the allotment deeds to the land were delivered to the father of plaintiff, and that plaintiff has been in possession of the land since prior to the commencement of the present suit. The court below, holding that there was an ambiguity in the record, received evidence as to the identity of the person enrolled, and decided in favor of the plaintiff. It is the contention of appellants in this court:
(1) That the Commissioner's decision is conclusive evidence that the person enrolled was the child of 'Big Jack' and Bettie, his wife.
(2) That if the decision of the Commissioner is not conclusive to that effect, yet that the weight of the evidence introduced upon the trial establishes the fact.
1. The Dawes Commission was a special tribunal having judicial powers. Its judgments were conclusive, in the absence of fraud or gross mistake, or arbitrary action, as to the questions it was authorized to decide, and also as to every issue of law and fact that it was necessary for it to determine in order to decide those questions. U.S. v. Wildcat, 244 U.S. 111, 37 Sup.Ct. 561, 61 L.Ed. 1024; Kimberlin v. Commission to Five Civilized Tribes, 104 F. 653, 44 C.C.A. 109; Malone v. Alderdice, 212 F. 668, 129 C.C.A. 204; Folk v. U.S., 233 F. 177, 147 C.C.A. 183; Nunn v. Hazelrigg, 216 F. 330, 132 C.C.A. 474; U.S. v. Atkins (C.C.A.) 268 F. 923. But the decisions of the Commission and the recitals and reports contained therein as to matters whose determination was not indispensable to enable it to adjudicate who should be enrolled, what lands should be allotted to those enrolled, and how, are not of judicial or conclusive effect. Malone v. Alderdice, supra; Porter v. U.S., 260 F. 1, 171 C.C.A. 37; U.S. v. Lena (C.C.A.) 261 F. 144. See also Hegler v. Faulkner, 153 U.S. 109, 117, 14 Sup.Ct. 779, 38 L.Ed. 653.
Applying these principles to the case at bar, it is clear that the main question before the Commissioner to the Five Civilized Tribes for determination at the time he rendered the above decision was whether or not the applicant whose...
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