Howell v. Brown

| Ct. App. Ind. Terr. | Oct 19, 1904

Gill, J.

An examination of the complaint and supplemental complaint in this action shows it not to be an action upon a foreign judgment, but to be an action upon an account. Clearly, it is a legal action, and has in its main features no elements whatever of an equity action; nor does the judgment of the court below in any wise show that the equity features of the complaint were at any time ever passed upon or decided by the court below. The pleadings, however, do show that the complaint asks of the court below equitable relief, by way of injunction and the appointment of a receiver. While the record does not disclose that the case was by order ever submitted to the master in chancery, or a special master in chancery, by the court below, it does disclose that both parties appeared and gave their testimony before one John Hinkle, who thereafter'filed his report as special master in chancery in the cause, submitting various findings of fact and conclusions of the law to the court, and that the court passed upon these findings and conclusions of law and rendered its judgment thereon after formal exceptions had been filed and argued to such report.

We have heretofore held, in the case of Swinney vs Kelley, 5 Ind. Ter. Rep. 12 (76 S.W. 303" court="Ct. App. Ind. Terr." date_filed="1903-09-23" href="https://app.midpage.ai/document/swinney-v-kelley-5142802?utm_source=webapp" opinion_id="5142802">76 S. W. 303), that where parties object to a reference to the master in chancery of a legal cause, and demand a jury trial, it is error in the court to overrule such objections and refuse such jury trial. But in this case we are confronted with an entirely different proposition. Here the parties, for convenience or otherwise, appeared before a special master in chancery and gave their testimony without objection and without exception to the submission of the cause in that form. Without exception or objection, the appellees in the trial of the cause below have allowed judgment in said cause to be taken upon the master’s report of the cause to the court in their favor, and received the benefits thereof, if any, and for the first time, in this court, they interpose the objection that it was an action at law, and that, inasmuch as the appellants have filed no motion for a new trial, they cannot be heard by reason thereof in this court; and w*e are asked to say that such cause is not properly before this court, because the action in the court below was an action at law, and no motion for a new trial has been filed. We do not think that such claim should prevail. In othér words, in reviewing causes on appeal to this court, we are of opinion, and so decide, that, when parties have tried a cause in the lower court upon certain theories and procedure without objection, they cannot come into this court, and for the first time raise objections which could have been successfully interposed in the court below, on the ground that the procedure was wrong and thejr opponents failed to object thereto, especially when they them-' selves receive the fruits of such procedure. There is no doubt that, if appellees had objected to reference of this cause to a master and had demanded a jury trial of the lower court, such objection and demand would have been heeded and acceded to.

We sit here to pass upon the same questions that were submitted to the lower court, and those only, except questions of jurisdiction, and perhaps some others going to the foundation of the action. To say that a plaintiff may found his judgment upon the report of a master in chancery after having voluntarily tried his action as an equitable action, and then to hold, because the defendants acceded to such voluntary wish upon his part, and tried the case in the same manner without objection, that defendant should not be allowed to appeal the cause after the manner of procedure whereby the cause was tried, would be to allow the plaintiff to take advantage of his own wrong, and contrary to all rules of equity and right doing. We must therefore hold that this court, under the peculiar circumstances of this case, is invested with full power to review and test all the actions and doings of the lower court in the trial of this cause.

Mansf. Dig. §' 4927 (Ind. Ter. St. 1899, § 3132), provides in reference to an error in the adoption of the kind of proceedings, whether equitable or legal, as follows: “Sec. 4927. Such error is waived by failure to move for its correction at the time and in manner prescribed in this chapter, and all errors in the decisions of the court on any of the motions named in this chapter are waived unless excepted to at the time, which may be done by the clerks noting at the end of such decision words of the following import: ‘To which decision the plaintiff (or defendant) excepts.' ” In this case there was no attempt on the part of either party to correct any supposed error with reference to the trial in this case as an equity case, and such error must be held to have been waived; and in support of this position we cite Burton vs Platter, which was a replevin case, and transferred to the equity docket by agreement of all parties, decided by the Circuit Court of Appeals of the Fourth Circuit, and reported in 53 F. 901" court="8th Cir." date_filed="1893-01-27" href="https://app.midpage.ai/document/burton-v-platter-8845644?utm_source=webapp" opinion_id="8845644">53 Fed. 901, 4 C. C. A. 95, in which the court uses the following language: “Where an action at law in the Indian Territory, wherein there is no cause of action or defense pleaded that is not as good at law as in equity, and which should be tried at law, is transferred to the chancery docket, and heard and tried by the master, all the parties agreeing thereto and participating in the proceedings, all irregularities of procedure are waived.” See, also, Sparks vs Childers, 2 Ind. Ter. Rep. 187, (47 S.W. 316" court="Ct. App. Ind. Terr." date_filed="1898-10-01" href="https://app.midpage.ai/document/sparks-v-childers-5142562?utm_source=webapp" opinion_id="5142562">47 S. W. 316).

Such being our view, we will proceed to consider the specifications of error assigned by appellants:

Appellant, in his first specification of error, says: “The court erred in holding that the paper"set out on pages 69 and 70 of the transcript was a judgment, and could hot be attacked; the same not being a judgment under the Chickasaw law, or any other law known to the civilized world.” The paper referred to and complained of is an account consisting of various items, and amounting to several thousand dollars, headed, “Account made by Joe. H. Riley, October 13th, 1885.” The several items in the account are not dated. The account does not state to whom it is due and payable. The account seems, in its several items, to be against sundry persons. All there is to it is as follows:

“Account made by Joe H. Riley, Oct. 13, 1885.

My son Hamer made 19,800 rails at 351.00 per hundred..! 198 00

And hauling the same, 50 cents per hundred... 99 00

Charlie Anderson, building rock chimney at Gibson Grayson's old place... 22 00

Solomon Harnatubbi made 2,525 at $1.00 per hundred 25 00

Cash .. 60 00

Lyman Frazier and Martin Ishtiaho-cha making rails.— 56 00

Cash borrowed (at the time his baby died)... 50 00

Five year old steer at $25.00 (half was mine). 12 50

Harvey Nail (for work)... 16 70

Pat Littlepage worked five months at $50.00.1— 250 00

Chandler (for work)....... 150 00

Dick McCuen (for making rails at Gibson Grayson's old . place) and wanted a certain dun horse Piney. 75 00

J. H. Riley and wife (for board 17 months at $10.00 each) . 340 00

Lucy Davis (for board 7 months at $10.00). 70 00

Wallace Williams (for board 7 months at $10.00). 70 00

Davis (for board 1 month at $10). 10 00

Littlepage (for board 5 months at $10). 50 00

Chandler (for boai’d 10 months at $10). 100 00

Solomon Harnatubbi (for board 2 months at $10.00). 20 00

Milton Brown, attending J. H. Riley's cattle, horses, and hogs, for 15 years at $150.00. 2,250 00

Rent Wire Pasture (24 months at $10.00).: 240 00

One mattress... 6 00

Breeding Mrs. Brown’s six mares to his horse at $10. 60 00

I paid in full before his mother died, and after her death J. R. Riley took the mares and colts, and promised to pay it, but never has. Rent farm, and hired Wallace Williams to make crop, and got behind with his crop, and told me to hire hands and put them with his man, and that I would be entitled to half of the crop, and I hired seven persons, viz., Solomon Harnatubbi, Easter, Eliza Ann, Willis Brown, Janey Brown, Old Lady Yarhonartecha and Maria, paid them. 22 00

and never has paid me yet.

Will Gattis (for board 2 months at $10.00). 20 00

Mrs. Farris (board 2 months at $10.00). 20 00

“Stonewall, I. T., May 12th, 1892. Mr. Milton Brown: Sir: Enclosed find your account against Joe H. Riley, which I have recorded, and return to you with county seal affixed. Clerk’s fee $5.00. Send to Stonewall by registered letter, and oblige yours respectfully, B. S. Perry, Clerk. A. G. Brown.

“Sworn to and subscribed to before me this the 17th day of September, 1894. Billy Perry, C. & P. Judge P. Co., C. N.”

Indorsed as follows: “No. 1,543. Within account approved. Billy Perry, County Judge of Pontotoc Co., C. N. Brown vs Howell. Recorded May 12th, 1892. B. F. Perry, Clerk.”

The appellants, for their second assignment of error, say: “The court erred in admitting such paper in evidence as the judgment of the probate court of the Chickasaw Nation, because said judgment was not authenticated or approved in the manner required by the Revised Statutes of the United States.” We will consider these two specifications of error together. If the foregoing may be taken to be a judgment of the county judge of Pontotoc county, Chickasaw Nation, the same must come into this court, if sued upon, in the same manner and subject to the same legal tests as though it were a foreign judgment. But is this sued upon in this ease as a foreign judgment? An examination of the complaint in the action shows that the same alleges: That immediately after the probating of the will of Joe H. Riley, in said Pontotoc county, “This plaintiff presented the account of herself, as administratrix of the estate of Milton G. Brown, to said executors, and demanded payment thereof, and the payment was refused. That said claim was filed with the judge of the probate court of Pontotoc county as a claim against the estate and executors of the said J. H. Riley, and notice of the fact that the same had been presented for approval was given to the said executor and executrix. Upon a full hearing of the various items of the same, said claim was duly and legally probated and allowed against the estate and the executors of the said J. H. Riley for the sum of $4,312.65. That the interest on said account to the present date, together with the original, and principal, amounted to $7,500.” Plaintiff further alleges, as the Chickasaw courts have jurisdiction to administer upon said estate in favor of another Chickasaw Indian, that their hearing and decision of the amount of said claim is valid and binding upon the executrix and executor named in said will and the defendants herein. This is all the reference there is made in the complaint to the so-called judgment reported in the case by the special master in chancery in his report to the court, which report upon that point is as follows: “The plaintiff bases her action upon an account approved and allowed by the county and probate judge of Pon-totoc county, Ind. Ter., in the sum of $4,312.65, principal, and enough interest to make the total $7,500. It appears that said account was recorded by the clerk of said county. * * * I am of the opinion that the plaintiff must stand or fall with the judgment of the Indian court. If they had the jurisdiction to enter the judgment, defendants cannot go behind it, but, if they did not, the defendants may go behind it to disprove plaintiff's account. * * * In my opinion, it had jurisdiction over the subject-matter of the estate pending in the court. But is it necessary, before they can legally allow claims, to first serve the executors or administrators with notice of the presentation of said claims, and, if so, did the defendant have that notice? The Indian law does not require notice to the executor or administrator upon the presentation of claims for allowance. * * * I therefore conclude that, the Indian court having passed upon the validity of this claim, the presumption is that it had jurisdiction and complied with the law, and its judgment became final, unless reversed upon appeal; that the judgment of the Indian court in approving and allowing the claim of plaintiff cannot be impeached in this action; and that the action of plaintiff herein be sustained.” Thereafter, upon this report coming before the trial court, said court entered judgment thereon as heretofore quoted in full, overruling the exceptions to the report of the master, “and that judgment should be rendered in favor of the plaintiff in accordance with the findings of the master in chancery.” Can this be taken to be a suit at all upon a foreign judgment? The prayer asks for judgment upon an account, and not upon a judgment. The complaint does not even charge that there was a judgment in any Chickasaw court. The utmost that can be said of the allegations of the complaint upon the subject of a judgment is that the Chickasaw court has jurisdiction to administer upon the estate mentioned in favor of another Chickasaw citizen, and that the hearing >and decision of said court upon the amount of the claim in controversy is valid_and binding upon the defendants Mansf. Dig. § 5163 (Ind. Ter. St. 1899, § 3368), provides as follows: “A judgment is the final determination of the rights of the parties in an action.” What action, if any, is mentioned in the so-called judgment? Who were the parties? What amount, if any, was found due and owing? To whom and by whom, if any person, was the owner of such so-called judgment? These questions must go as unanswerable. The paper in evidence, as a judgment, lacks every element of certainty as to parties and other elements of a judgment, and cannot be taken in any sense as a judgment.

The judgment of the court below, having been founded and based'upon the findings and conclusions in the report of the special master in chancery, and findings and recommendations of said master being that there was a judgment of the Chickasaw court, and that such judgment could not be impeached in the present action, conclusively shows that the findings and conclusions of the master in the case were misconceptions of the case, and such conclusions cannot stand, nor can the action of the lower court in approving the master’s report be upheld. The approval of the master’s report was error, and the judgment founded thereon was, in like manner, erroneous, and, such judgment having been entered up on a misconception of the nature of the cause, it cannot be sustained; and the case is ordered reversed, and the cause remanded, with directions to the lower court to allow the defendants in this action (appellants) to interpose such defenses as they may have to the plaintiff’s (appellee’s) account. Inasmuch as the case is ordered reversed, it is unnecessary to consider the other specifications of error.

Cause reversed and remanded, with directions to the court below to grant leave to each party to amend the pleadings, if desired.

Raymond, C. J., and Clayton, J., concur.