Walker v. Spencer

• Decision Date: 09 December 1941
• Docket Number: No. 2325.,2325.
• Citation: 123 F.2d 347
• Parties: WALKER v. SPENCER et al.
• Court: U.S. Court of Appeals — Tenth Circuit

123 F.2d 347 (1941)

WALKER v. SPENCER et al.

No. 2325.

Circuit Court of Appeals, Tenth Circuit.

October 27, 1941.

Rehearing Denied December 9, 1941.

W. R. Kerr and C. R. Thurlwell, both of Tulsa, Okl. (John T. Adams and John R. Adams, both of Denver, Colo., on appeal only), for appellant.

Charles Champion, of Muskogee, Okl. (Norman M. Littell, Asst. Atty. Gen., Cleon A. Summers, U. S. Atty., of Muskogee, Okl., and Vernon L. Wilkinson, Roger P. Marquis, and Donald R. Marshall, Attys., Department of Justice, all of Washington, D. C., on the brief), for appellee the United States of America.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

J. B. Walker sued the administrator of the estate of Jackson Barnett, deceased, in two causes of action. It was alleged in the first that Barnett was a Creek Indian; that from 1902 to 1911, inclusive, he was destitute; that plaintiff furnished him food, clothing, lodging, medicines and cash; that he expressed appreciation for such benefactions and stated that if he ever had any money he would pay plaintiff liberally; that in 1911 plaintiff became incapacitated to do physical labor; that thereafter oil was discovered on Barnett's allotment; that he became wealthy and was worth several million dollars at the time of his death; that in 1926, in fulfillment of his agreement to pay plaintiff for the benefactions extended to him, Barnett executed a written instrument which directed the "General Indian Bureau" to pay plaintiff one million dollars; that the estate was indebted to plaintiff in that sum; and that a claim had been presented to the administrator and by him denied. The second cause of action realleged the matters pleaded in the first, and further alleged that in the event it should be determined that the written instrument did not create an enforceable obligation, plaintiff was entitled to recover on quantum meruit for the services rendered and the expenditures made, in the reasonable sum of one million dollars. The written instrument recited that plaintiff had extended aid to Barnett; that Barnett told plaintiff he hoped some day to be able to help him; that plaintiff had sustained an injury and needed help; and that plaintiff was also of Indian blood. It then directed that one million dollars be paid to plaintiff out of Barnett's money in the custody of the Bureau, referred to the transaction as a gift, and was executed by thumb mark.

The defendant served notice of the pendency of the suit on the Superintendent of the Five Civilized Tribes, and the United States seasonably caused it to be removed to the United States Court for Eastern Oklahoma, under the provisions of section 3 of the Act of April 12, 1926, 44 Stat. 239. By answer the defendant admitted that a claim predicated upon the order had been disallowed; pleaded that if Barnett signed the order it was signed without consideration, that Barnett was incompetent to sign or execute an instrument of that kind or to transact business and was under guardianship for incompetency, and that all of his property was restricted and not subject to any order made by him; and denied all of the material allegations contained in the second cause of action, particularly that the estate was indebted to plaintiff in any sum. By intervention the United States pleaded that Barnett was a full-blood Creek Indian; that he died in 1934; that at the time of his death he was the owner of certain land which had been allotted to him; that he owned other land, money, funds and property which were the accumulations from oil produced on the allotment; that such money, funds and property had been and then were in the custody of the Secretary of the Interior, for the use and benefit of Barnett and his heirs; that the heirs were restricted Indians; that the property constituting the estate was not subject to alienation; and that the estate was not liable for any contract made or debt created by Barnett in his lifetime. By answer to the intervention, plaintiff disclaimed and waived any interest in the allotted land or the interests of the restricted heirs of the allottee therein, or to the issues and proceeds therefrom.

When the cause came on for trial, plaintiff sought to dismiss it without prejudice; the court denied the application; defendant and the intervenor announced ready for trial but plaintiff announced that he was not ready; the court thereupon dismissed the action with prejudice; and plaintiff appealed.

The first contention advanced for reversal is that the court erred in denying the motion of plaintiff to remand the cause to the state court. The grounds of the motion were that both plaintiff and defendant were citizens of Oklahoma; that plaintiff was not asserting any right or interest in land allotted to a citizen of the Five Civilized Tribes, or to the proceeds, issues, rents or profits derived therefrom, to which a restricted member of such tribes was entitled; and that the court was without jurisdiction of the subject-matter of the action. Section 3, supra, provides that a party to a suit in the state court in Oklahoma, to which a restricted member of the Five Civilized Tribes or the restricted heirs or grantees of such an Indian are parties, and claiming or entitled to claim title to or an interest in lands allotted to a citizen of such tribes, or the proceeds, issues, rents and profits derived therefrom, may serve written notice of the pendency of such suit upon the superintendent of the Five Civilized Tribes; and that within twenty days thereafter or...