United States v. Thompson, No. 2451.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: PHILLIPS, MURRAH, and WILLIAMS, Circuit
• Citation: 128 F.2d 173
• Parties: UNITED STATES v. THOMPSON et al.
• Decision Date: 05 May 1942
• Docket Number: No. 2451.

128 F.2d 173 (1942)

UNITED STATES
v.
THOMPSON et al.

No. 2451.

Circuit Court of Appeals, Tenth Circuit.

May 5, 1942.

128 F.2d 174

Frank J. Dugan, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., and Vernon L. Wilkinson and Donald R. Marshall, Attys., Dept. of Justice, both of Washington, D. C., on the brief), for appellant.

John S. Severson, of Tulsa, Okl. (A. Lee Battenfield, of Pryor, Okl., on the brief), for appellees.

Before PHILLIPS, MURRAH, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge, delivered the opinion of the court.

Whether the United States District Court for the Northern District of Oklahoma had jurisdiction of this case removed under Section 3¹ of Act of April 12, 1926, 44 Stat. 239, 240, where notice of pendency of the suit was not served "within ten days after the general appearance in the case of the party causing the notice to be issued" is raised.

It was instituted by a full-blood Cherokee Indian, member of said tribe, in the state district court of Mayes County, Oklahoma on November 27, 1940, for partition of a restricted Cherokee Indian allotment, inherited upon death of the allottee by the appellees (plaintiff and defendants below),

128 F.2d 175

restricted full-blood Cherokee Indians, and answer filed by two defendants on December 9, 1940, and affidavit as to proof that publication of notice as to other defendant heirs was completed on December 26, 1940, and filed on December 27, 1940, and then notice was caused to be issued on December 27, 1940, and served on the Superintendent for the Five Civilized Tribes on December 28, 1940

On January 13, 1941, in the state district court before entry of order of removal in said court on January 29, 1941, through application of the United States of America an order extending time within which to plead in said cause was entered, reciting that "it appearing to the court that service of notice and certified copy of pleadings in said cause was had on the Superintendent of the Five Civilized Tribes pursuant to provisions of Act of Congress of April 12, 1926, and that an extension is necessary for the United States of America to plead herein: It is therefore the order of this court that the United States of America be and is hereby granted an extension of 60 days from January 17, 1941, within which to plead in said cause."

The United States of America may be hereafter referred to as the Government.

Petition of the Government for removal of said cause from the state district court, filed in said court on January 22, 1941, to the United States District Court for the Northern District of Oklahoma, with the notice as to hearing filed in said state court on January 24, 1941, to be heard on January 29, 1941, and the state court, having heard the same on said date, entered its order which recited that proper petition with accompanying notice having been filed therein, it is ordered that said petition "be and the same hereby is accepted and approved and the Clerk of this court is hereby directed to make up and certify the record in this cause for transmission to the United States District Court for the Northern District of Oklahoma." The transcript was filed in said court on February 10, 1941, and on the same date after notice to plaintiff by the Government motion on its part was filed and presented for permission to intervene in said cause,² and thereafter on February 11, 1941, an order was entered in said United States District Court allowing the Government to intervene.³ The Government after intervening filed motion to quash service of notice on the Superintendent for the Five Civilized Tribes,⁴ and after notice to the plaintiff same was heard on April 4, 1941, and thereafter on April 8, 1941, the court overruled said motion to quash.⁵

On May 14, 1941, without further active

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participation therein by the Government as intervener, it having neither pleaded further within the fifteen days allowed on April 4, 1941, in which to plead in said action, nor made any request for further time in which to plead, the court proceeded to trial and entered its decree determining heirs, and quieting title, and then appointed commissioners to partition the land "if the same can be done without manifest injury to the interests of the parties." The commissioners thereafter reported that partition in kind was not feasible and appraised the land at $300. The court on June 27, 1941, ordered a partition sale and this appeal followed

In McKay v. Rogers, 10 Cir., 82 F.2d 795, in suit to recover land by restricted member of Five Civilized Tribes which was removed to the proper United States District Court under Act of April 12, 1926, after notice given to the Tribal Superintendent, and the United States Government appeared, held not required to remand to state court though United States Government failed to plead or participate in trial. See, also, Brelsford v. Whitney Trust & Savings Bank et al., 5 Cir., 69 F. 2d 491.

The decree provided that it was "binding in all respects on the United States of America to the same extent as such decree is binding on all other parties to said action."

Errors here assigned are: (1) Overruling motion to quash service of notice of pendency of suit as not served upon the Superintendent of the Five Civilized Tribes within the ten days prescribed by Act of April 12, 1926; (2) in holding that the United States was bound by the decree determining heirs, quieting title, and ordering the land to be partitioned as notice of pendency of suit was not served within the ten-day period; and (3) the court had no jurisdiction and should have remanded the cause to the state court.

Neither was suggestion nor motion made by the Government to have the cause remanded. Jurisdiction of the state district court from which the action was removed as to partition of real estate was by virtue of Act of Congress of June 14, 1918,⁶ 40 Stat. 606; McDougal v. Black Panther Oil & Gas Co., 8 Cir., 273 F. 113; United States v. Watashe et al., 10 Cir., 117 F.2d 947.

Intervention by the Government was under provision of Act of Congress of April 12, 1926, 44 Stat. 239, 240, Section 3, set out in footnote 1, enacted by Congress that the Government may be apprised as to pendency of such actions, and intervene and have same removed to a United States District Court if it were so impressed, and determined to assert in such court to which removed its interest as guardian of the Indian or Indians whose estates embraced the subject matter of the action or actions. Such act is a remedial statute for permanence of titles and that judgments in all such actions should be binding on all...