Parker v. Lynch

• Decision Date: 30 July 1898
• Citation: 7 Okla. 631,56 P. 1082,1898 OK 76
• Parties: JOHN W. PARKER v. JAMES W. LYNCH et al
• Court: Oklahoma Supreme Court

1898 OK 76

56 P. 1082

7 Okla. 631

JOHN W. PARKER v. JAMES W. LYNCH et al

Supreme Court of Oklahoma

Decided: July 30, 1898

SYLLABUS

¶0 1. JURISDICTION DEFINED. Jurisdiction is the authority by which courts and judicial officers take cognizance of and decide cases. Power to hear and determine a cause. If a court has jurisdiction of the persons to the action, and the cause is the kind of a cause triable in such court, it has jurisdiction of the subject of the action and has the power to render any rightful judgment therein.

2. HOMESTEAD--Contest--Rights of Parties--Trustee. The offering to file a contest against a homestead entry, gives a party no interest in the land. By such offer, he acquires no vested right in any sense of the word. If the Land Department entertain a contest, and permit it to be filed, the party filing the same has the right to have it heard, but he has no right or interest in the land itself; and the fact that one offered a contest against a homestead entry, even though his grounds named therein were valid, and the contest should have been entertained and a hearing granted, yet if the Department rejected his contest, he, by the offering of such contest, acquired no interest whatever in the land embraced in the entry, and he cannot maintain an action to declare the patentee, who was the entryman at the time he offered his contest, a trustee, for his use and benefit.

This is an action commenced by John W. Parker, in the district court of Kay county, against James W. Lynch and the town of Ponca City, to declare a resulting trust. Judgment was rendered for defendant, from which plaintiff appeals to this court.

The original petition was filed on May 17, 1895. To this, the defendants interposed their respective demurrers on two grounds: (1) That the court had no jurisdiction of the subject matter of the action; and, (2) that the petition did not state facts sufficient to constitute a cause of action. The record does not show that these demurrers were sustained to plaintiff's petition, but the sustaining of the demurrer to plaintiff's original petition is assigned as error. This court will not consider any assignment of error which is not presented by the record. It might be suggested, though, that this very question was decided by this court in the case of Kingman v. Pixley, this volume, p. 351. The court held in that case that when a demurrer is sustained to a petition, and plaintiff, after obtaining leave of court, files an amended petition, and the issues are joined thereon, and a trial had, the plaintiff, by filing his amended pleading, waives any error committed by the trial court, in sustaining such demurrer. Citing, Young, et al v. Martin, 8 Wall. 354, and Rosa v. M. K. & T. R. R. Co., 18 Kan. 124.

It is shown by the record that plaintiff obtained leave of court on August 10, 1895, to file an amended petition, which was filed in due time. The amended petition, omitting the caption and exhibits, is as follows:

"The plaintiff, John W. Parker, leave of court having been first obtained, makes, presents and files this his amended petition, and for cause of action herein against said defendants and each of them, alleges:

"That the said defendant, the town of Ponca City, claims to be a municipal corporation duly organized and existing under and by virtue of the laws of the Territory of Oklahoma, but the true character of which this plaintiff does not know, and as a part of the lands within the boundaries of said defendant, the town of Ponca City, is the southwest quarter of section 27 in township 26 north of range 2 east of the Indian meridian, in Kay county, Oklahoma Territory.

"That this plaintiff now is and at all times hereinafter mentioned was a native born citizen of the United States, over the age of twenty-one years, and in all respects duly qualified under the homestead laws of the United States, and under the law and president's proclamation, (dated August 19, 1893, opening to homestead settlement certain lanes in the Cherokee Outlet,) to make homestead entry of not to exceed 160 acres of said lands.

"That by said proclamation, under and by virtue of the laws of the United States, the president opened to homestead settlement, at the hour of 12 o'clock, noon, Central Standard time, September 16, 1893, among other lands, the said southwest one quarter of section 27, in township 26, north of range 2, east of the Indian meridian, in Kay county, Oklahoma Territory, which said lands were so opened to homestead settlement by reason of the act of congress approved March 3, 1893, and the said president's proclamation, dated August 19, 1893, and plaintiff avers that he at no time violated the law or the president's proclamation concerning the entry into, or upon the lands opened to settlement as aforesaid, or the regulations of the president or secretary of the interior, but in all things, strictly, legally and honestly complied with the law and the proclamation and the rules and regulations of the secretary of the interior concerning the opening, occupancy and settlement, and entry of and upon said lands, and, plaintiff avers, that on the 16th day of September, 1893, prior to the hour of 12 o'clock, noon, Central Standard time, of that day, the said James W. Lynch, contrary to law and the said president's proclamation, and the said rules and regulations of the secretary of the interior, wrongfully and without right, and in defiance of the law and said proclamation, entered upon the lands opened at the hour of 12 o'clock noon, Central Standard time, as herein aforesaid, and also procured and caused one David Pryor, as his agent and representative, to likewise enter upon said land, and as a special messenger in his behalf, to convey the homestead application and other papers accompanying it to make homestead entry of said southwest one quarter of section 27, township 26, north of range 2, east of the Indian meridian, Kay county, Oklahoma Territory, to the United States local land office at Perry, Oklahoma Territory, to which said land was attached.

"That as such agent and employee of said defendant, the said David Pryor as aforesaid, did, about the hour of 4 o'clock A. M., September 16, 1893, enter upon said lands, and as the agent and for the benefit of said defendant, James W. Lynch, did convey the homestead application of said defendant, and other papers accompanying it, as a special messenger, to the local land office at Perry, Oklahoma Territory, and presented and filed, or caused the same to be presented and filed there at about 12:30 o'clock, P. M., September 16, 1893. That in so doing, the said David Pryor, as the agent of the said James Lynch, entered upon said lands so opened to settlement as aforesaid, near the north line thereof, and more than fifty miles from the said Perry land office, and in conveying said defendant Lynch's said homestead application as aforesaid, said Pryor entered upon and traveled over the lands so opened to settlement as aforesaid, for more than forty miles, prior to the hour of 12 o'clock noon, Central Standard time, September 16, 1893, and reached said land office, and the government townsite of Perry, within said lands so opened to settlement as aforesaid, and filed or caused to be filed his said homestead application, and other papers of said defendant, Lynch, long prior to the time that any one did, or could have reached said land office, or said government townsite of Perry, had they legally entered said lands from any point at the outer boundary thereof, as fixed by the law and the president's proclamation at the hour of opening, or at the point were said Pryor entered the same which said application was marked filed in said local land office at Perry, as rejected application No. 1; that afterwards on January 4, 1894, the said application was placed of record by the register of said land office, as homestead entry No. 5030.

"Plaintiff further says that said application was not sworn to as required by law, nor as required by the rules and regulations of the interior department, nor before an officer authorized to administer oaths, nor presented and filed as required by the rules and regulations, or the laws of the interior department of the United States; that afterwards, the said James W. Lynch made application to commute said homestead entry, and purchase said lands for townsite purposes under the second proviso of section 22 under the Organic Act of the Territory of Oklahoma, and made final proof thereunder before B. N. Woodson, probate judge of Kay county, Oklahoma Territory, which said proof was by said Woodson transmitted to said register and receiver of said Perry land office, and by them transmitted to the honorable commissioner of the general land office of the United States.

"That afterwards, and about the 19th day of May, 1894, and prior to the approval of said final proof of defendant, by the commissioner of the general land office, and prior to the issuance and delivery of any certificate of purchase to said land to the defendant, Lnych, this plaintiff filed in the United States land office at Perry, Oklahoma Territory, his affidavit of contest against the said homestead entry and application of said Lynch, to commute the said southwest one-quarter of section 27, township 26, aforesaid. That afterwards, this plaintiff filed with the commissioner of the general land office, various affidavits of various persons corroborating his contest affidavit herein aforesaid; that afterwards, the honorable commissioner of the general land office in considering the premises, did not entertain this plaintiff's application to contest the said entry of defendant Lynch, but wholly failed and refused so to do.

"That afterwards this plaintiff filed an additional affidavit of contest amendatory and supplemental to his first aforesaid affidavit of contest against the defendant Lynch's said homestead entry and townsite application.

"That afterwards,

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