Parks v. City of Ada

• Decision Date: 13 July 1909
• Parties: PARKS v. CITY OF ADA.
• Court: Oklahoma Supreme Court

103 P. 607

24 Okla. 168, 1909 OK 187

PARKS v. CITY OF ADA.

Supreme Court of Oklahoma

July 13, 1909

Syllabus by the Court.

A judgment rendered in a United States Court for the Indian Territory prior to the admission of the state cannot be brought to the Supreme Court of the state for review by a proceeding in error with a petition in error and transcript.

Under the federal appellate procedure in force in the Indian Territory prior to the admission of the state, an appeal which was allowed by one of the justices of the United States Court of Appeals for the Indian Territory becomes inoperative, and on motion will be dismissed, where no citation was issued and signed by such justice upon the allowance of the appeal and approval of the bond, and where no citation by order of the Supreme Court has been issued and served before the expiration of the ensuing term after the allowance of the appeal.

Under such procedure the clerk of the court has no power to issue and sign a citation.

Error from the United States Court for the Southern District of the Indian Territory at Ada; J. T. Dickerson, Judge.

Action by the City of Ada against Harry Parks. Judgment for plaintiff, and defendant brings error. Petition in error dismissed.

S. T Bledsoe and J. F. McKeel, for plaintiff in error.

Thomas P. Holt, City Atty., Clinton A. Galbraith, and Tom D McKeown, for defendant in error.

HAYES J.

This is an action in equity instituted originally in the United States Court for the Southern District of the Indian Territory at Ada by defendant in error, plaintiff below seeking to abate a nuisance. The trial in that court resulted in a judgment in favor of defendant in error. The decree was rendered on the 14th day of October, 1907. After the adjournment of the term at which the decree was entered, a petition and prayer for appeal to the United States Court of Appeals for the Indian Territory, with assignments of error was presented by plaintiff in error, defendant below, to the Honorable Hosea Townsend, associate justice of said court, who allowed the appeal and fixed the amount of the supersedeas bond. The petition for appeal, and the allowance thereof, and the bond, were filed with the clerk of the trial court on the 15th day of November, 1907. No citation was signed by the justice allowing the appeal, and none has since been issued and served. On the 10th day of February, 1908, plaintiff in error filed in this court his petition in error, accompanied by a transcript of the record in the trial court and has issued a summons in error from this court, the service of which was accepted by defendant in error. A motion to dismiss this proceeding has been filed by defendant in error upon the ground that the judgment in the lower court cannot be reviewed by this court under the procedure taken by plaintiff in error, and that the appeal allowed by the Honorable Hosea Townsend on the 15th day of November, 1907, before the admission of the state, is inoperative because no citation was ever issued or served.

In Kelley et al. v. McCombs et al., 102 P. 186, a case recently decided by this court, but not yet officially reported, it was held that a judgment rendered in a suit in equity in one of the United States courts of the Indian Territory before the admission of the state could be brought to this court for review after the admission of the state only by appeal; and that the federal appellate procedure, put in force in the Indian Territory by Act Cong. March 3,...