Roberts v. Anderson

• Decision Date: 01 September 1933
• Docket Number: No. 770.,770.
• Citation: 66 F.2d 874
• Parties: ROBERTS v. ANDERSON et al.
• Court: U.S. Court of Appeals — Tenth Circuit

66 F.2d 874 (1933)

ROBERTS v. ANDERSON et al.

No. 770.

Circuit Court of Appeals, Tenth Circuit.

July 29, 1933.

Rehearing Denied September 1, 1933.

Joseph C. Stone, of Muskogee, Okl. (D. Haden Linebaugh, Francis Stewart, and Julian B. Fite, all of Muskogee, Okl., on the brief), for appellant.

Merrick A. Whipple, of Tulsa, Okl. (F. M. Goodwin, of Washington, D. C., and O. C. Essman, of Tulsa, Okl., on the brief), for appellee Hanna Anderson.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl. (A. E. Williams, Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before PHILLIPS and McDERMOTT, Circuit Judges, and KENNEDY, District Judge.

McDERMOTT, Circuit Judge.

Section 1 of the Act of Congress of June 14, 1918 (40 Stat. 606, 25 USCA § 375) provides that:

"A determination of the question of fact as to who are the heirs of any deceased citizen allottee of the Five Civilized Tribes of Indians who may die or may have heretofore died, leaving restricted heirs, by the probate court of the State of Oklahoma having jurisdiction to settle the estate of said deceased, conducted in the manner provided by the laws of said State for the determination of heirship in closing up the estates of deceased persons, shall be conclusive of said question: Provided, That an appeal may be taken in the manner and to the court provided by law, in cases of appeal in probate matters generally."

Under the authority so conferred, the county court of Okmulgee county entered an order on August 18, 1930, determining that Jack Roberts and Hanna Anderson were the sole heirs of Lena. Yahola Alexander, a fullblood Creek Indian.

On July 21, 1930, Hanna Anderson, a fullblood Creek, brought this suit against Roberts and others claiming adverse interests, to quiet her title to lands allotted to Lena Yahola Alexander in her lifetime. Notice was served on the United States as provided by the Act of April 12, 1926 (44 Stat. 240) in response to which the United States filed an intervening petition which espoused the cause of Hanna Anderson and prayed that her title be quieted as against the defendants. Roberts set up the determination of the county court as a conclusive adjudication of his status as an heir. The trial court specially found as a fact that Hanna Anderson had been denied a hearing before the county court, and concluded that the determination of that court, being lacking in due process, was not binding on appellees. Voluminous testimony was heard upon the fact of heirship, from which the trial court found that Roberts was not the son of Lena Yahola Alexander. The title of Hanna was quieted.

The trial court had jurisdiction of Hanna's suit because of diversity of citizenship, and of the intervening petition of the United States by reason of its guardianship over Indians such as Hanna. Tiger v. Twin State Oil Co. (C. C. A. 10) 48 F.(2d) 509, 511.

The finding of the trial court on the merits, that Roberts was not an illegitimate child of Lena but was the son of Mahala who reared him from infancy, is not challenged. The efforts of Roberts, aided at times by his own mother, to participate in this large estate by assertions of his own illegitimacy, is a sordid story that need not be perpetuated by recital here, save to say that the record convinces us, as it did the trial court, that Roberts has no interest in the property involved. The claim of appellant is that the lower court was precluded from ascertaining the facts of heirship because of the prior determination by the county court.

It is now entirely settled that the act empowering the county courts of Oklahoma to determine heirship does not prohibit other courts from ascertaining and deciding the facts as to heirship whenever necessary in litigation in such other courts. Judge Sanborn, speaking for the Eighth Circuit Court of Appeals in McDougal v. Black Panther Oil & Gas Co., 273 F. 113, 118, examined the question from the standpoint of the statutes, the decisions, and public policy, and so determined; that decision has been followed in a great mass of litigation over Indian titles. Judge Rainey, speaking for the Supreme Court of Oklahoma, in an opinion characterized by Judge Sanborn as "exhaustive, instructive, and convincing," came to the same conclusion in State v. Huser, 76 Okl. 130, 184 P. 113, 122, and State v. Wilcox, 75 Okl. 158, 182 P. 673, where a writ of prohibition directed to the Judge of a Superior Court who was about to determine heirship as an incident to a suit to quiet title, was denied. See, also, Homer v. Lester, 95 Okl. 284, 219 P. 392.

It is likewise settled, by the cited decisions, that a valid determination by the county court under the quoted statute is binding upon all other courts to which the same question may be subsequently submitted. If an appeal is pending from such determination, it nevertheless is conclusive until set aside. Even though a judgment is later reversed, it is an adjudication while it remains in force. Crescent City Live-Stock Landing & Slaughter-House Co. v. Butchers' Union Slaughter House & Live-Stock Landing Co., 120 U. S. 141, 7 S. Ct. 472, 30 L. Ed. 614; Deposit Bank v. Frankfort, 191 U. S. 499, 510, 24 S. Ct. 154, 48 L. Ed. 276; Straus v. American Publishers' Ass'n (C. C. A. 2) 201 F. 306, 310; Parkhurst v. Berdell, 110 N. Y. 386, 18 N. E. 123, 6 Am. St. Rep. 384; Freeman on Judgments, § 328.

From these authorities it is clear that while the county court has jurisdiction to determine the fact of heirship of deceased citizen allottees of the Five Civilized Tribes, such jurisdiction is not exclusive but concurrent; and that where such fact of heirship is necessary for the determination of actions pending in another court, such court may determine such fact, and need not stay its hand until the county court has acted. The first valid adjudication of the fact by either court is conclusive upon the other within the principles of estoppel by judgment. If, therefore, at the time of the trial of this suit to quiet title, over which the lower court had jurisdiction and the county court did not, a valid determination by the county court that Roberts was an heir of Lena Yahola Alexander was introduced in evidence, the trial court was precluded from again determining that fact. If the county court erred, either during the trial or in its decision, the error must be corrected on appeal to the higher state courts. If, however, the determination of the county court was lacking in the essentials of due process, then the determination is a nullity and cannot be availed of to preclude an ascertainment of the facts in this litigation. Appellees assert that the determination of the county court is a nullity for several reasons; but one need be considered, that Hanna was denied a hearing before the county court.

Where the rights of a citizen depend upon the ascertainment of facts, due process of law requires that he be notified of the hearing and be afforded an opportunity to be heard. Webster defined the "law of the land" as "a law which hears before it condemns." In Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914, there was a proper notice and appearance, but a hearing was denied. The court held the judgment was not entitled to respect in any other tribunal; that when a hearing is denied, the notice is ineffectual for any purpose. In McVeigh v. United States, 11 Wall. 259, 267, 20 L. Ed. 80, it was said that "A different result would be a blot upon our jurisprudence and civilization." Other cases to the effect that a denial of a hearing invalidates judgments of courts and decisions of administrative bodies are: Brinkerhoff-Faris T. & S. Co. v. Hill, 281 U. S. 673, 50 S. Ct. 451, 74 L. Ed. 1107; Goldsmith v. U. S. Board of Tax Appeals, 270 U. S. 117, 123, 46 S. Ct. 215, 70 L. Ed. 494; Moore v. Dempsey, 261 U. S. 86, 43 S. Ct. 265, 67 L. Ed. 543. In Atchison, Etc., Ry. Co. v. United States, 284 U. S. 248, 52 S. Ct. 146, 150, 76 L. Ed. 273, it was held that "a fair hearing is a fundamental requirement" of decisions of the Interstate Commerce Commission. In Int. Com. Comm. v. Louis. & Nash. R. R., 227 U. S. 88, 91, 33 S. Ct. 185, 186, 57 L. Ed. 431, it was held that "administrative orders, quasi judicial in character, are void if a hearing was denied; if that granted was inadequate or manifestly unfair."

The right to a hearing includes the right to the assistance of counsel of his own choice, if requested. Cooke v. United States, 267 U. S. 517, 537, 45 S. Ct. 390, 69 L. Ed. 767; Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 64, 77 L. Ed. 158, 84 A. L. R. 527. In the case last cited, the Supreme Court said:

"If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense."

With these fundamental principles, which are embedded in this and every other government of free institutions, in mind, let us examine the proceedings before the county court which culminated in the determination here relied upon by appellant.

Hanna Anderson, conceded to be a daughter of Lena, was of age and of sound mind. She employed M. A. Whipple, a lawyer in good standing at the bar, to represent her in the heirship proceedings, and in writing authorized him to make such special or general appearance for her as the legal situation required. At the outset Whipple undertook to appear specially, as he had a right to do; in the early stages of the proceedings he appeared generally, first informally and then formally. The court denied him the right to appear generally, holding that he had "sinned away that right" by undertaking to appear specially and to remove the cause to the federal court. The court declined to permit Whipple to file an answer; it declined to permit the Hon. F. M. Goodwin, employed by authority of the...