Shellenbarger v. Fewel.

• Decision Date: 19 March 1912
• Docket Number: Case Number: 1681
• Citation: 124 P. 617,34 Okla. 79,1912 OK 277
• Parties: SHELLENBARGER v. FEWEL. *
• Court: Oklahoma Supreme Court

1912 OK 277

124 P. 617

34 Okla. 79

SHELLENBARGER v. FEWEL. *

Case Number: 1681

Supreme Court of Oklahoma

Decided: March 19, 1912

Syllabus

¶0 1. REMOVAL OF CAUSES--Cases Under Laws of United States-- Allegations in Pleadings. When a cause is sought to be removed from a state to a federal court, on the sole ground that it is one arising under the Constitution, laws, or treaties of the United States, the fact that it does so arise, thus making it removable, must be ascertained from the necessary allegations of plaintiff's statement of his own cause of action. And in determining the question, resort may not be made to the allegations in the petition for removal or in later pleadings.

2. SAME--Nature of Controversy. A cause cannot be removed from a state to a federal court simply because, in the progress of the litigation, it may become necessary to give a construction to the Constitution or laws of the United States. In such cases the state courts are competent to determine the matter in the first instance.

3. EJECTMENT--Proceedings--Pleading Title. Under section 6122, Comp. Laws 1909, the plaintiff, in an action for the recovery of real estate, is not required to deraign his title with particularity.

4. INDIANS--Lands--Inheritance. The law of descent, in force at the date the selection of a Creek allotment takes effect, governs as to the classification of the heirs; and this law relates back to the death of the Indian entitled to take the allotment, and identifies such heirs as of that date.

5. SAME. Under the Creek law of descent and distribution, put in force by the Original Creek Agreement, c. 676, 31 St. at L. 870, an intermarried noncitizen husband receives out of his deceased citizen wife's allotment an heir's part. Following de Graffenreid v. Iowa L. & T. Co., 20 Okla. 711, 95 P. 624.

* Appealed to the Supreme Court of the United States.

May, 1912, Decided

Error from District Court, Tulsa County; John H. Pitchford, Judge.

Action by William M. Fewel against John H. Shellenbarger. Judgment for plaintiff, and defendant brings error. Affirmed.

William R. Lawrence, for plaintiff in error.

B. T. Hainer and H. B. Martin, for defendant in error.

BREWER, C.

¶1 Suit for possession of lands, cancellation of deeds, and to quiet title. This action was filed July 13, 1908, in the district court of Tulsa county. The cause was submitted to and tried by the court, by agreement of the parties, on an agreed statement of facts, summarized as follows: That Minnie Solander was a duly enrolled citizen by blood of the Creek Nation, and entitled to an allotment at the date of her death, intestate, October 8, 1899; that she left surviving, her husband, George Solander, and one child, Hettie Solander, and a sister Phoebe Trusler; that Hettie was the legitimate child of Minnie and George Solander; that the husband, George Solander, was not of Creek blood; that the child Hettie was of one-quarter Creek blood; that Hettie died December 19, 1899, intestate, and without issue, and was the only child of Minnie; that Phoebe Truslet was of Creek blood, and the only sister of Minnie; and Minnie had no brother, nor were there children of deceased brothers or sisters; that George Solander and Phoebe Trusler selected and had allotted to the heirs of Minnie Solander the S. 1/2 of the S.E. 1/4, section 2, township 17 N., range 13 E., Tulsa county, Okla.; that thereafter patent was issued in the name of the heirs of Minnie Solander, deceased. It is further admitted in the agreed statement of facts as follows:

"That the Creek Nation as a political sovereignty had a written and codified form of laws, and that the following is a correct copy of the Creek laws of descent and distribution in force and effect at the time of the deaths of the said Minnie Solander and the said Hettie L. Solander, applicable to the descent and distribution of the estate of the said Minnie Solander and the estate of the said Hettie L. Solander, deceased, as contained in the Creek statutes, to wit. * * *"

¶2 The laws of the Creek Nation are set out; among the sections being as follows:

"Sec. 6. Be it further enacted that if any person die without a will, having property and children, the property shall be equally divided among the children by disinterested persons and in all cases where there are no children, the nearest relation shall inherit the property."

"Sec. 8. The lawful or acknowledged wife of a deceased husband shall be entitled to one-half of the estate, if there are no heirs, and an heir's part if there should be other heirs in all cases where there is no will. The husband surviving shall inherit of a deceased wife in a like manner."

¶3 At page 37 of plaintiff in error's brief the issue is stated thus:

"The sole inquiry is: Who were the heirs of Minnie and Hettie Solander under the Creek law of descent? Section 8, supra."

¶4 William M. Fewel was plaintiff below, and John H. Shellenbarger was defendant; they will be referred to herein as they were known in the trial court.

¶5 The plaintiff claimed title under a deed from George Solander, as sole heir of Minnie and Hettie Solander, his deceased wife and child, dated April 27, 1906. The defendant claimed title under a deed from Phoebe Trusler as sole heir, dated August 15, 1906. The execution of the deeds by the respective parties was admitted. The court found that George Solander took the property as heir, and, having conveyed it to plaintiff, gave plaintiff judgment.

¶6 There are but two questions to be determined in this case: First. Whether this cause was removable to the United States court on application of defendant. Second. To determine who, under the laws of descent and distribution of the Creek Nation, took this allotment as heir.

¶7 We will consider first the question of removability. The jurisdiction of the Circuit Courts of the United States is defined in the Act of March 3, 1887, c. 373, 24 St. at L. 552, as corrected by the Amendatory Act of August 13, 1888 (chapter 866, vol. 1, Sup. Rev. St. U.S. p. 611 [U. S. Comp. St. 1901, p. 508]), and so far as necessary to be examined here is as follows:

"Section 1. That the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, etc. * * *"

¶8 The authority for removing a suit upon the ground that it arises "under the Constitution or laws of the United States, etc.," is found in the same act, supra, as follows:

"Sec. 2. That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the Circuit Courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought in any state court, may be removed by the defendant or defendants therein to the Circuit Court of the United States for the proper district."

¶9 Before proceeding to a discussion of the matter, it is proper to observe that the single question here is whether the cause is a removable one, because "arising under the Constitution or laws, or treaties, etc., of the United States." No other questions, such as diversity of citizenship, and others mentioned in the statutes, are involved. Therefore logically, and indeed necessarily, the first inquiry is: What is a controversy "arising under the Constitution or laws of the United States," and how defined? In the text Encyclopedia of U.S. Supreme Court Reports, 670, such controversies are defined as follows:

"Where it has in some way been made to appear on the face of the record that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States or sustained by an opposite construction in the state court, the case may be removed, regardless of the citizenship of the parties."

¶10 The above definition may have been deduced from the case of Carson v. Dunham, 121 U.S. 421, 7 S. Ct. 1030, 30 L. Ed. 992, wherein it is said:

"The suit must be one in which some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the Constitution, or a law or treaty of the United States, or sustained by a contrary construction."

--Cited with approval in Tennessee v. Union & P. Bank, 152 U.S. at page 460, 14 Sup. Ct. at page 656 (38 L. Ed. 511).

¶11 And in Starin v. New York, 115 U.S. 248, 257, 6 S. Ct. 28, 31 (29 L. Ed. 388), it was stated, as the effect of all the authorities on the subject, that if, from the question involved in the suit, "It appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, within the meaning of that term as used in the act of 1875; otherwise not." Cited with approval in S. P. R. Co. v. California, 118 U.S. 109, 6 S. Ct. 993, 30 L. Ed. 103.

¶12 In the judiciary act of 1887, as corrected by the act of August 13, 1888, supra, the language giving jurisdiction in this class of cases is identical with that of the act of 1875 except as to the amount involved in the controversy. The following cases involve different phases of the clause of the judiciary act under consideration: Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 379, 5 L. Ed. 257; Osborn v. United States Bank, 22 U.S. 738, 9 Wheat. 738, 824, 6 L. Ed. 204; The Mayor v. Cooper, 73 U.S. 247, 6 Wall. 247, 252, 18 L. Ed. 851; Gold Washing, etc., Co. v. Keyes...