United States v. Anglin & Stevenson

• Decision Date: 06 October 1944
• Docket Number: No. 2881.,2881.
• Citation: 145 F.2d 622
• Parties: UNITED STATES v. ANGLIN & STEVENSON et al.
• Court: U.S. Court of Appeals — Tenth Circuit

145 F.2d 622 (1944)

UNITED STATES v. ANGLIN & STEVENSON et al.

No. 2881.

Circuit Court of Appeals, Tenth Circuit.

October 6, 1944.

Norman MacDonald, Attorney, Department of Justice of Washingston, D. C. (Norman M. Littell, Asst. Atty. Gen., Cleon A. Summers, U. S. Atty., and William H. Landram, Asst. U. S. Atty., both of Muskogee, Okl., on the brief), for appellant.

Joseph C. Stone, of Muskogee, Okl., and D. A. Richardson, of Oklahoma City, Okl. (W. T. Anglin, of Holdenville, Okl., Alfred Stevenson and Dick Jones, both of Oklahoma City, Okl., E. W. Smith, of Henryetta, Okl., Charles A. Moon, of Oklahoma City, Okl., Francis Stewart, of Muskogee, Okl., Leon C. Phillips, of Okemah, Okl., L. O. Lytle and George Jennings, both of Sapulpa, Okl., Herbert G. House, of Muskogee, Okl., Roscoe S. Cate, of Oklahoma City, Okl., Harry B. Parris, of Eufaula, Okl., Wilbur J. Holleman and J. Garfield Buell, both of Tulsa, Okl., and Howell Parks, of Muskogee, Okl., on the brief), for appellees.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

By this appeal the United States challenges the power and authority of the trial court to award attorneys' fees and expenses to attorneys for certain Indian wards of the United States, who were the successful claimants in this proceedings to determine heirship and settle the Estate of Jackson Barnett, a full-blood restricted Creek Indian. The fees and expenses awarded were ordered paid proportionately out of the distributive share of each of the successful Indian heirs in accordance with the court's judgment. The funds recovered by the litigation, as the distributive shares of the respective Indian clients, were restricted as and when inherited, hence not subject to disbursement without the consent and approval of the Secretary of the Interior. On this premise, it is contended by the United States that the judgment of the court ordering the payment of attorney's fees out of the inherited funds is in effect a disposal of restricted funds without the consent and approval of the Secretary of the Interior, who has not and cannot be sued, and is not a party to the suit; that the court did not acquire jurisdiction of the funds, consequently that part of its judgment allowing a fee and ordering it paid out of the restricted funds was unauthorized.

The judgment of the trial court is based upon the proposition that by appropriate pleadings filed by the United States, and every pretending heir, the court acquired jurisdiction to determine the lawful heirs of Jackson Barnett; to settle and distribute the Estate, and to try and decide every other issue essential to the full and complete determination of those questions; that when the United States, acting through the Secretary of the Interior and the Department of Justice, thus invoked the jurisdiction of the court, it thereby consented to the court's jurisdiction over the Estate, which was the subject matter of the litigation, for the purpose not only of determining heirship and distributing the Estate, but also to allow a reasonable attorneys' fee and expenses to the attorneys who recovered the funds for those found to be lawfully entitled to inherit the Estate.

The allowance of the fees to be paid out of the inherited funds recovered as the distributive shares of the Indian clients, is based upon the rule that where an attorney recovers a fund for the benefit of his client and others, those benefited thereby become obligated to pay the cost of the recovery and preservation of the fund, including a reasonable "between solicitor and client fee." The rule springs directly from the "authority of the chancellor to do equity in a particular situation," Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 59 S.Ct. 777, 780, 83 L.Ed. 1184, and has been applied under variant circumstances wherever right and justice require it. Sprague v. Ticonic Nat. Bank, supra; United States v. Equitable Trust Co., 283 U.S. 738, 51 S.Ct. 639, 75 L.Ed. 1379; City of Wewoka v. Banker, 10 Cir., 117 F.2d 839; O'Hara v. Oakland County, 6 Cir., 136 F.2d 152; Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; Wallace v. Fiske, 8 Cir., 80 F.2d 897; In re Middle West Utilities Co., D.C., 17 F.Supp. 359; Clarke v. Hot Springs Electric Light & Power Co., 10 Cir., 76 F.2d 918; Security National Bank of Watertown v. Young, 8 Cir., 55 F.2d 616, 84 A.L.R. 100; Nolte v. Hudson Navigation Co., 2 Cir., 47 F.2d 166; Central Railroad & Banking Co. of Georgia v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915. In United States v. Equitable Trust Co., supra, the rule was recognized and applied in a suit involving this Estate, and the appellees rely upon it to support not only the application of the equitable rule, but to sustain the jurisdiction of the court over the fund from which the costs are to be paid. Our question here is primarily one of authority to apply the rule, and not its application.

Jackson Barnett, a full-blood Creek Indian resident of Muskogee, Oklahoma, died intestate in Los Angeles, California, on May 29, 1934. He was survived by no wife or issue, no father, mother, brother or sister, and at the time of his death he was seized of an estate consisting of real property located in Oklahoma and California, and personal property in the form of bonds, securities and monies in the custody of the Secretary of Interior, having an admitted net value of $1,235,724.72, all of which represented the proceeds of oil and gas produced on his restricted allotment, and was likewise restricted against alienation and disbursement without the consent and approval of the Secretary of the Interior. Soon after his death, administration proceedings were commenced in the County Court of Muskogee County, Oklahoma, and two other suits were commenced, one in Muskogee County, Oklahoma, and another in McIntosh County, Oklahoma, to quiet title to certain lands located in the respective counties belonging to the Estate of Jackson Barnett. All of the suits had for their ultimate purpose the determination of the heirs of Jackson Barnett and the settlement and distribution of his Estate. Notice of the pendency of each of the suits was given to the Superintendent of the Five Civilized Tribes, as provided by Section 3 of the Act of April 12, 1926, 44 Stat. 239, and each of the said suits was duly removed to the United States District Court for the Eastern District of Oklahoma.

Thereafter the United States, by and through the Attorney General, acting at the request of the Secretary of the Interior, filed a petition of intervention in each of the removed cases as "guardian of the restricted Indian heirs of Jackson Barnett" (then undetermined). In each of the petitions it was alleged in substance that Jackson Barnett died seized of certain restricted real and personal property; that certain named restricted Indian wards of the United States were claiming an interest in the Estate as the lawful heirs of Jackson Barnett, and that other unnamed and unknown persons also claimed to be heirs of Jackson Barnett and as such to have some right and interest in his Estate. That all of the heirs of Jackson Barnett were restricted Indians, and that the intervention was filed as a guardian of the restricted wards who may be adjudged the heirs at law of the Estate of Jackson Barnett. The petition prayed that the court require the various claimants to appear and establish their rights by strict proof, and that the court determine the true and lawful heirs of Jackson Barnett, and distribute the Estate to his rightful heirs as their interest may appear, determine all the matters involved in this litigation, and for all proper and equitable relief to which those wards may be entitled.

Thereafter and on March 5, 1935, on motion of the parties, the cases were consolidated for trial and disposition as No. 4556 Equity "In the matter of the Estate of Jackson Barnett," and that part of the proceedings pertaining to the appointment of an administrator was remanded to the County Court of Muskogee County, where an administrator had been appointed, the trial court retaining jurisdiction to determine heirship and to settle and distribute the Estate. Appropriate notice of the pendency of the suit was given to all known and unknown heirs, and they were by the court ordered to appear and present their claims to the Estate for adjudication on or before a specified date, or be forever barred from asserting any interest therein.

In pursuance of this notice, about fifty different family groups of pretending heirs, comprising approximately eight hundred individuals represented by attorneys, intervened in the consolidated suit, all claiming to be heirs of Jackson Barnett and entitled to inherit all or part of his Estate. Thereafter by amended petition of intervention, the United States pleaded a judgment in its favor and against Anna Laura Barnett in the United States District Court for the Southern District of California (see Barnett et al. v. United States, 9 Cir., 82 F.2d 765) as res judicata of her claim to the Estate, and prayed that she be barred from recovering any part of the Estate as such. In other respects the prayer was that the court determine the true and lawful heirs of Jackson Barnett, and to distribute the Estate as their respective interests may appear; that the claimants who are restricted Indians have the protection to which they were entitled, and that the United States be protected by final decree in its rights and duties with respect to the restricted Indians and their restricted property. Neither the original nor the amended intervention purported to allege who of those claiming were the lawful heirs of Jackson Barnett; the court treated the petition as an interplea, and the conduct of the United States throughout the course of the litigation was consistent with its assumed position of neutrality.

In September, 1937, and in the course of the trial of the case, the attorneys representing three...