Porter v. Brook

• Decision Date: 10 September 1908
• Citation: 97 P. 645,21 Okla. 885,1908 OK 178
• Parties: PORTER et al. v. BROOK.
• Court: Oklahoma Supreme Court

97 P. 645

21 Okla. 885, 1908 OK 178

PORTER et al. v. BROOK.

Supreme Court of Oklahoma

September 10, 1908

Syllabus by the Court.

Under Act Cong. March 3, 1905, c. 1479, § 12, 33 Stat. 1081 (U. S Comp. St. Supp. 1907, p. 208), providing that appeals and writs of error shall be taken from the United States Courts in the Indian Territory to the United States Court of Appeals of said territory in the same manner that cases are taken by appeal or writ of error from the Circuit Courts of the United States to the Circuit Court of Appeals, an appeal must be taken within six months from the date of the entry of the judgment sought to be reviewed.

Appeal from the United States Court for the Western District of the Indian Territory Sitting at Muskogee; Wm. R. Lawrence, Judge.

Suit by Edward Porter and others against Eck E. Brook. Judgment for defendant, and plaintiffs appeal. Dismissed.

This is a suit in equity for partition, brought by appellants against appellee in the United States Court of the Indian Territory at Muskogee. A final decree dismissing plaintiff's suit was rendered in that court on September 6, 1905, and on the 18th day of April, 1907, more than six months after the entry of the judgment appealed from, appellants prayed for and obtained an appeal to the United States Court of Appeals of the Indian Territory, where the case was pending at the time of the admission of the state into the Union, and the case is now before this court for final disposition under the provisions of the Enabling Act.

W. F Schuermeyer and De Roos Bailey, for appellants.

N. A. Gibson and Geo. S. Ramsey, for appellee.

HAYES J.

A motion to dismiss the appeal in this action has been filed by defendant in error (appellee), in which he asks that the appeal be dismissed for the reason that it was not taken within six months from the date of entry of the judgment in the trial court. The Court of Appeals of the Indian Territory was established by Act Cong. March 1, 1895, c. 145, and by section 11 of said act (28 Stat. 698) that court was given such general superintending control over the United States Courts in the Indian Territory as was conferred upon the Supreme Court of Arkansas over the courts of that state by the provisions of chapter 40 of Mansfield's Digest of the Statutes of Arkansas, and said chapter was, in so far as it related to the jurisdiction and powers of the Supreme Court of Arkansas as to appeals and writs of error and as to the trial and decision of causes, extended and put in force in the Indian Territory in so far as applicable. Ind. T. Ann. St. 1899, c. 17. The same section of that act of Congress provided that writs of error and appeals from the decision of the Court of Appeals of the Indian Territory should be allowed and taken to the Circuit Court of Appeals for the Eighth Circuit in the same manner and under the same regulations as appeals are taken from the Circuit Courts of the United States.

Section 1276 of Mansfield's Digest of the Statutes of Arkansas (Ind. T. Ann. St. 1899, § 778), which section is one of the sections of said chapter 40, reads: "An appeal or writ of error shall not be granted, except within three years next after the rendition of the judgment or order, unless the party applying therefor was an infant, married woman, or of unsound mind, at the time of its rendition, in which cases an appeal or writ of error may be granted to such parties, or their legal representatives, within one year after the removal of their disabilities, or death, whichever may first happen." Under the provisions of this section, an appeal or writ of error to review a judgment or order of one of the United States Courts in the Indian Territory could be granted only at a time within three years after the rendition of the judgment or order appealed from, except in those instances enumerated in the section. With said chapter 40 of Mansfield's Digest of the Statutes of Arkansas prescribing the appellate procedure in cases taken from the trial courts to the Court of Appeals of the Indian Territory and the federal procedure controlling in cases taken from said Court of Appeals to the Circuit Court of Appeals, two different systems of appellate procedure prevailed in the Indian Territory controlling the final disposition of the cases arising therein. These systems of procedure were both complete, but unlike.

Congress, by section 12 of the Indian Appropriation Act, approved March 3, 1905 (33 Stat. 1081, c. 1479 [U. S. Comp. St. Supp. 1907, p. 208]), provides: "That hereafter all appeals and writs of error shall be taken from the United States Courts in the Indian Territory to the United States Court of Appeals in the Indian Territory, and from the United States Court of Appeals in the Indian Territory to the United States Circuit Court of Appeals for the Eighth Circuit in the same manner as is now provided for in cases taken by appeal or writ of error from the Circuit Courts of the United States to the Circuit Court of Appeals of the United States for the Eighth Circuit." By this act it appears that Congress intended to, and did, substitute for the procedure provided by chapter 40 of Mansfield's Digest the federal procedure by which cases are taken from the Circuit Courts of the United States to the Circuit Court of Appeals for the Eighth Circuit, and at the same time provided that the same procedure should govern in cases taken from the Court of Appeals in the Indian Territory to the Circuit Court of Appeals, thereby prescribing a uniform system of procedure for appeals from judgments and orders both of the trial court and of the intermediate appellate court of the Indian Territory. Section 12, supra, was not by express language made as an amendment to said chapter 40, or any part thereof. It was not enacted to cure or supply any defect in the procedure prescribed by said chapter, for none existed. A complete appellate procedure for taking cases from the trial courts to the Court of Appeals was provided by said chapter 40. We think it was the intention of Congress to substitute the procedure in appeals from the Circuit Courts of the United States to the Circuit Court of Appeals for the Eighth Circuit for the procedure prescribed by said chapter 40. Act Cong. March 3, 1891, c. 517, § 11, 26 Stat. 829 (U. S. Comp. St. 1901, p. 552), provides what procedure shall govern appeals and writs of error by which judgments or orders are sought to be reviewed in the Circuit Court of Appeals. This section reads in part as follows: "That no appeal or writ of error by which any order, judgment or decree may be reviewed in the Circuit Court of Appeals, under provision of this act, shall be taken or sued out except within six months after the entry of the judgment, order or decree sought to be reviewed." It has been repeatedly held that the Circuit Court of Appeals, under this section, has no jurisdiction in a case where more than six months intervene between the entry of the judgment in the trial court and the date on which the writ of error is sued out. Conn. Fire Ins. Co. v. Oldendorff, 73 F. 88, 19 C. C. A. 379; Condon v. Central L. & T. Co., 73 F. 907, 20 C. C. A. 110; White v. Iowa National Bank, 71 F. 97, 17 C. C. A. 621; Threadgill v. Platt (C. C.) 71 F. 1.

It has been suggested that the act of March 3, 1905, contains no repealing clause, and does not repeal by express language section 1276 of Mansfield's Digest, supra, and that there has been no repeal of said section, unless by implication and that repeals by implication are not favored. This we recognize as an established rule of construction; but there is also another equally well established rule of construction as to repeals by substitution, which is a form of repeal by implication, that where a statute is designed to create a new and...