Veiser v. Armstrong

• Decision Date: 18 September 1984
• Docket Number: No. 57878,57878
• Parties: Milford A. VEISER, Carton S. Stallard, also known as Carlton S. Stallard, Louis Stein, Edward R. Eberle, William W. Hagerty, Ross D. Hill, James C. Kellogg III, William L. Pereira and W. Paul Stillman, as trustees, pursuant to the Declaration of Trust of Hamilton Investment Trust, a voluntary business association, and First National Bank and Trust Company of Tulsa, Firstul Mortgage Company, and Sackman Gilliland Corporation, Appellees, v. Nellie Atkins ARMSTRONG, Appellant, and Young & Latch Investments, an Oklahoma general partnership, Robert L. Latch, M.R. Wilmot, Inc., and B.H. Mayfield, doing business as Mayfield Supply Company, and Baker, Baker & Martin, an Oklahoma general partnership, or if said partnership no longer exists, then its unknown successors, Appellees, and Broken Arrow Mall, Inc., Abercrombie, Pedigo & Smith, Inc., and Maple Leaf Apartments, Ltd., Defendants.
• Court: Oklahoma Supreme Court

Page 796

688 P.2d 796

1984 OK 61

Milford A. VEISER, Carton S. Stallard, also known as Carlton

S. Stallard, Louis Stein, Edward R. Eberle, William W.

Hagerty, Ross D. Hill, James C. Kellogg III, William L.

Pereira and W. Paul Stillman, as trustees, pursuant to the

Declaration of Trust of Hamilton Investment Trust, a

voluntary business association,

and

First National Bank and Trust Company of Tulsa, Firstul

Mortgage Company, and Sackman Gilliland

Corporation, Appellees, v. Nellie Atkins ARMSTRONG, Appellant, and Young & Latch Investments, an Oklahoma general partnership, Robert L. Latch, M.R. Wilmot, Inc., and B.H. Mayfield, doing

business as Mayfield Supply Company, and Baker, Baker &

Martin, an Oklahoma general partnership, or if said

partnership no longer exists, then its unknown successors, Appellees,

and

Broken Arrow Mall, Inc., Abercrombie, Pedigo & Smith, Inc.,

and Maple Leaf Apartments, Ltd., Defendants.

No. 57878.

Supreme Court of Oklahoma.

Sept. 18, 1984.

Appeal from the District Court, Tulsa County; David E. Winslow, judge.

In an action to foreclose mortgages, one of the defendants counterclaimed and cross-petitioned, alleging ownership of the property in suit and seeking ejectment of certain parties from the land. From summary judgment against her, the defendant brings this appeal. AFFIRMED.

C. Rabon Martin, Tulsa, for appellant.

Timothy E. McCormick, Edwin R. Reavis, Rogers, Honn, Hill, Secrest & McCormick, Tulsa, Monty L. Bratcher, Oklahoma City, for appellee, Hamilton Inv. Trust.

Conner, Winters, Ballaine, Barry and McGowen, Tulsa, for appellees, Young & Latch Investments, Robert L. Latch, The First Nat. Bank and Trust Co. of Tulsa and Firstul Mortg. Co.

Royce H. Savage, Tulsa, for appellee, Sackman Gilliland Corp.

OPALA, Justice.

This appeal was brought for review of the trial court's (1) order granting a plea to the jurisdiction and motion to quash interposed by some parties and of (2) order granting summary judgment on motion by the remaining parties to the claim. By an earlier opinion this court dismissed the appeal insofar as it sought corrective relief from the order granting a plea to the jurisdiction and motion to quash. ¹

FACTS

Billy Atkins [Atkins], an enrolled full-blood Creek Indian was the conveyee of a 1903 surplus allotment of 120 acres. Alienation of the land was then restricted by a congressional act. Upon his death in 1923 Atkins' three surviving children, Creeks of the half-blood, each inherited an undivided one-third interest in their father's allotment. These surviving children were Nellie Armstrong [Armstrong], appellant herein, and her two brothers. Upon the death of Atkins the restrictions on the land came to be terminated by operation of law. His children hence took free of any restrictions on the land and also of any personal restrictions.

Armstrong and her brothers exchanged deeds in 1940. As a result of this action each of them became the owner of a complete interest in an entire 40-acre tract. Although the land was still unrestricted when this occurred, Congress, in 1947, changed its policy by retroactively imposing restrictions on certain lands transferred by inheritance. ² More specifically the restriction was placed on any interest in land that had been acquired by Indian heirs or devisees of one-half or more Indian blood when such interest in land was restricted in the hands of the person from whom the Indian heir or devisee acquired the land. The restriction imposed by the Act provided that "[n]o conveyance [of such lands] shall be valid unless approved ... by the county court of the county in Oklahoma in which the land is situated ..." ³ [emphasis supplied].

Armstrong and her husband conveyed in 1965 by warranty deed her 40-acre tract to Becko. The present parties in interest acquired the land through a series of subsequent conveyances. In 1974 Armstrong brought suit in a federal court for ejectment and to quiet title in herself. She alleged that the deed to Becko was void since it was not given in compliance with the 1947 congressional act. Both federal courts--district and circuit--held against her. ⁴

Hamilton Investment Trust, holder of several mortgages on the property in question, sought in this suit to foreclose its mortgages upon the land in dispute. Armstrong, as a defendant in the case, filed her counterclaim and cross-petition for ejectment. She alleged she was the owner of the property in suit and joined in the litigation all those persons who were parties in the prior federal suit.

The state court found that Armstrong's claims to the land were barred by the prior federal adjudication. Summary judgment was rendered against Armstrong and in favor of all the parties who had been successful in the prior federal-court suit.

The case presents a mixed federal-state question of law. Federal law governs both the preclusive and res judicata effect of the prior federal-court judgment ⁵ but (b) state law must be applied in gauging the correctness of the procedure invoked for launching the collateral attack. ⁶

The posture of this case raises two related issues for our resolution: (1) whether "issue preclusion" ⁷ is invocable as a bar against a collateral attack upon the federal-court judgment based on an alleged jurisdictional defect and (2) whether "claim preclusion" ⁸ is applicable to prevent relitigation of Armstrong's claims to the land in suit against all the parties in her prior litigation. ⁹

We hold that the procedural avenue of collateral attack, based on the theory of a facially void judgment, is foreclosed to Armstrong by operation of issue preclusion because that issue has been previously "fully and fairly" litigated in the federal courts albeit in the procedural context of a somewhat different cause of action. Since Armstrong's attack was the only device open to her in the state court in order to avoid the effect of the prior federal-court judgment--and that route is held here unavailable--claim preclusion will operate to bar relitigation of her asserted claims to the land in suit.

I

ISSUE PRECLUSION BARS ARMSTRONG'S CLAIM THAT THE PRIOR

FEDERAL-COURT JUDGMENT IS FACIALLY VOID FOR LACK

OF SUBJECT MATTER JURISDICTION

Armstrong's challenge is rested on the federal court's facial want of subject matter jurisdiction and of the power to render the judgment. She does not question that court's jurisdiction over the parties.

Although a question may arise on the face of the judgment roll ¹⁰ as to the presence of an essential jurisdictional prerequisite--whether it be (a) jurisdiction of the parties, (b) jurisdiction of the subject matter or (c) jurisdictional power to render the particular judgment--issue preclusion will nonetheless operate to bar a collateral attack upon the judgment if want of the jurisdictional element that facially appears to be in doubt has been "fairly and fully" litigated as a disputed issue between the parties. ¹¹

A. The federal-court judgment is not facially void for want of subject matter jurisdiction

It is clear that the federal court had subject matter jurisdiction in the original case brought by Armstrong. The terms of 28 U.S.C. § 1331 vest the federal district court with subject matter jurisdiction of all civil actions arising under the constitution, laws or treaties of the United States. The 1947 Act is a law of the United States promulgated by the Congress. Armstrong's asserted right of possession is claimed under that federal law; thus subject matter jurisdiction was vested in the federal district court. ¹² The United States Court of Appeals for the Tenth Circuit explicitly noted that the construction of a federal statute is a matter of federal law. ¹³

Armstrong's assertion that the prior judgment is void for want of jurisdiction is based on two Oklahoma cases: Neal v. Travelers Insurance Co. ¹⁴ and Tidal Oil Co. v. Flanagan. ¹⁵ These and other cases in a continuing line of authority are inapplicable to the facts before us now. Neal dealt with a state court's lack of jurisdiction to foreclose a real estate mortgage on inherited, restricted Indian lands, which mortgage was not approved as required by Congress. Tidal Oil deals with state courts' lack of jurisdiction to quiet title to minor Indians' allotted land where a conveyance was executed in violation of federal statutes. These cases are not authority in the case at bar. They deal with the jurisdiction of state courts. The question for us here deals with the jurisdiction of federal courts, not of Oklahoma state courts, to entertain a dispute over the meaning of a federal statute as it affects transactions concerning Indian lands. This issue is one of federal law. It hence lies within the cognizance of federal courts.

Even if the issue of subject matter jurisdiction in the federal courts had not been fully and fairly litigated, Armstrong's collateral attack still could not be successful. The defect relied on does not appear on the face of the record proper ¹⁶ which alone is the target of her collateral attack. Armstrong was required to, and did plead in her petition, the grounds for invoking federal-court jurisdiction. The federal district court found as a matter of law that it had jurisdiction of the subject matter before it. It thus could adjudicate all issues and determine the rights of all parties. ¹⁷

B. Armstrong Raised and Fully Litigated the Question of the Federal Court's Jurisdiction to Render the Judgment

Armstrong collaterally attacks the decision of the federal court on the basis that the prior litigation is facially void for want of jurisdictional power to render the particular judgment rendered. ¹⁸ In her brief-in-chief and reply brief to the Tenth Circuit Court of Appeals, she squarely raised the issue of the federal court's lack of jurisdiction to render a judgment which, she argued, gave approval to the conveyance of restricted land. More specifically, in Proposition II of her brief-in-chief she argued that although the 1947...