1 Indian Terr. 233 | Ct. App. Ind. Terr. | 1897
(after stating the facts.) The record in this case presents two questions for our consideration: First. Whether the United States commissioner, who has the jurisdiction of a justice of the peace in Arkansas, had jurisdiction of this case. Second. Whether J. D. Lankford, the husband, was a competent witness for his wife in the case.
As to the first question, it is conceded that if the United States commissioner had no jurisdiction, the United States Court acquired none on appeal, and that the United States commissioners in the Indian Territory have only, such jurisdiction as is expressly given them by statute. Congress, in conferring jurisdiction upon United States commissioners in the Indian Territory, provided, by the act of May 2, 1890, that they should have and exercise the same jurisdiction which is exercised by justices of the .peace in the state of Arkansas, and extended the provisions of chapter 91 of Mansfield’s Digest of the Laws of Arkansas, entitled “Justices of the Peace,” over the Indian Territory. Section 4026 of Mansfield’s Digest, which was thus put in force in the Indian Territory, provided as follows: “Justices of the peace shall severally have original jurisdiction in the following matters. First. Exclusive of the Circuit Court, in all matters of contract where the amount in controversy does not exceed the sum of §100, excluding interest; and con
Notwithstanding these specific averments in the complaint and in the answer in this case, counsel for the appellant contend that the appellee bases her right to recover on the common-law liability of the appellant as a common carrier, and that the complaint states a cause of action ex delicto, over which the commissioner had no jurisdiction; and, farther, that ’ “where the liability is imposed by law,
As to the second question, — whether J. D. Lankford, the husband, was a competent witness for his wife in the case at bar: It appears from the record that the suit in the commissioner’s court was begun in the name of J. D. Lankford and wife, Mrs. E. Lankford. On the trial of the case in the United States Court the testimony of the witness J. D. Lankford disclosed the fact that his wife was the sole owne of the ring and diamond set which were contained in the package in question. Appellant’s counsel moved that the name of J. D. Lankford be stricken out as a plaintiff. Thereupon, appellee’s counsel amended the complaint by striking out the name of J. D. Lankford as a party plaintiff. Counsel for appellant then moved the court to strike out the testimony of J.'D. Lankford upon the ground that while he was a plaintiff he could testify in his own behalf, yet when he ceased to be a party to the action his testimony was rendered incompetent in behalf of the remaining plaintiff, his wife. Upon this point the bill of exceptions contains the following statement by Judge Lewis, the trial judge: “I sign this bill of exceptions with this statement of facts, touching the action of the court in overruling the motion of the defendant to strike out the testimony of the witness J. D. Lankford. The defendant cross-examined the witness at length, prior to making this motion, and in every way endeavored to elicit from him facts favorable to the defendant; and after it had subjected him to this cross-examination, without objection on its part to the admission of hib testimony or his competency as a witness in