Swift v. Jackson
| Citation | 37 F.2d 237 |
| Decision Date | 02 January 1930 |
| Docket Number | No. 49.,49. |
| Parties | SWIFT v. JACKSON et al. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Chester I. Long, of Wichita, Kan. (Peter Q. Nyce, of Washington, D. C., J. B. Campbell, of Holdenville, Okl., and J. D. Houston and W. E. Stanley, both of Wichita, Kan., on the brief), for appellant.
Webster Ballinger, of Washington, D. C. (Edwin S. Booth, of Washington, D. C., on the brief), for appellees.
Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.
This is an action at law brought by George M. Swift against Martha Jackson, an incompetent Indian, and Hill Moore, as her guardian, to recover for certain services alleged to have been rendered by Swift, as an attorney-at-law, under a contract entered into May 19, 1919, between W. E. McKinney, purporting to act as guardian of Martha Jackson, and Swift. This contract recited that McKinney, as such guardian, "hereby employs George M. Swift, as his attorney-at-law, to take all necessary and proper steps and to bring such suit or suits as may be necessary, to avoid and cause to be cancelled and held for naught a certain guardian's deed and assignment of royalties, made and entered into on the 9th day of July, 1917, by and between R. W. Parmenter, as guardian of Martha Jackson, a minor, and Thomas Kelly, purporting to convey all the right, title and interest of the said Martha Jackson, in and to the following described land, situate in Creek County, Oklahoma, and all royalties due the said Martha Jackson from said land: The Northwest Quarter, Section Nine (9), Township Eighteen (18) North, Range Seven (7) East." This tract of land, described in the contract, is commonly known as the Barney Tholocco allotment. The contract further provided that, in consideration of such services, Swift should "have and receive one-half of all property, or money which" might "be recovered by him in any suit or suits filed by him, whether received upon any settlement or compromise or upon judgment." It further provided that Swift should "prosecute, or cause to be prosecuted such suit or suits, as" might be "necessary for the recovery" of such "property and royalties." It further provided that "if said suit or suits are defeated" Swift should "claim no further compensation, but in the event" Swift should "recover, or cause to be recovered, either upon settlement or compromise or upon judgment, any part of such property or royalties," Swift should be "entitled to" and should "receive one-half of such recovery as full compensation."
After the making of such contract, in a suit then pending in the District Court for the Eastern District of Oklahoma, entitled United States v. Bessie Wildcat et al., Swift filed an application to file a petition of intervention on behalf of McKinney, as guardian of Martha Jackson, seeking to set aside the contract between Parmenter and Martha Jackson and one Thomas Kelly and others for the sale of Martha Jackson's interest in such allotment and her royalty interest under an oil and gas lease thereof. Leave to file the petition in intervention was denied. McKinney appealed from this order and the order of the District Court was affirmed in McKinney v. Black Panther O. & G. Co. (C. C. A. 8) 280 F. 486, 493. The facts with reference to this petition and this contract are fully set out in McKinney v. Black Panther O. & G. Co., supra, and Swift v. Parmenter (C. C. A. 8) 22 F.(2d) 142. Swift neither brought nor prosecuted any other suit or suits, pursuant to such contract.
The decree in the lower court, in McKinney v. Black Panther Co., supra, provided that Martha Jackson should receive the sum of $111,670.74, plus 25% of one-eighth of the proceeds derived from said land between March 31, 1918, and the date of the decree, subject to one-eighth of the expenses and charges set out in such decree. After this decree had been entered, the matter of the approval of certain contracts relative to Martha Jackson's interests came before the Secretary of the Interior, with the result that the contract for the sale of Martha Jackson's interest was modified by a supplemental contract dated October 22, 1921, which provided that she should receive $308,000 in addition to the $12,000 that she had already received for the sale of her interest, and that she should be exempted from all liability for charges and costs of litigation and administration of the property.
The first cause of action in the complaint set out that Swift performed the necessary services provided for in his contract with McKinney, as guardian; that the sum of $206,590.30 was saved to, and obtained for the estate of Martha Jackson by reason of Swift's efforts and activities; that under such contract Swift was entitled to receive one-half of such recovery, and sought recovery of $103,295.15 with interest.
The second cause of action sets up that Swift expended the sum of $12,145 as expenses in connection with and in performing such services, and asks for the recovery of that amount with interest.
The answer denied the legality of the appointment of McKinney, as guardian, and denied McKinney had the power to make such contract. It alleged that the contract dealt with restricted property; that the contract had not been approved by the Secretary of the Interior and was void. It alleged the facts with reference to the application of McKinney to intervene in United States v. Bessie Wildcat et al. and the final disposition of such application. It alleged that no recovery was made or could be made by Swift under such contract. It alleged that, during the pendency of the appeal from the decree in United States v. Bessie Wildcat, prosecuted in the name of McKinney by Swift, as attorney for McKinney, Swift voluntarily submitted his claim for services rendered under such contract to the United States Circuit Court of Appeals, Eighth Circuit, and requested that court to allow him reasonable attorney's fees for such services, and that such court rejected his claim in its entirety.
To this answer, Swift filed a reply, which is largely a narration of the history of the litigation with reference to the Barney Tholocco allotment and the guardianship of Martha Jackson.
The trial court sustained a motion for judgment on the pleadings in favor of the defendants and entered judgment dismissing the petition. This is an appeal therefrom.
Counsel for the defendants rely upon a number of grounds to support the ruling of the trial court, but we think it is necessary to notice only two: First, that Swift made no recovery under the contract of May 19, 1919, and by its express terms is entitled to no compensation thereunder; and, second, that the decree in McKinney v. Black Panther Co., supra, is a bar to Swift's claim under the doctrine of res adjudicata.
McKinney's application for leave to intervene, filed by Swift in United States v. Wildcat et al., was denied. Swift appealed...
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