5 Indian Terr. 475 | Ct. App. Ind. Terr. | 1904
This suit is an action for divorce commenced by appellee against appellant in the Southern District, September 28, 1900. The amended bill, filed January 23, 1901, reads: “The plaintiff, Mrs. Hattie Woods, complaining of the defendant, Geo. W. Woods, most respectfully represents and shows to the court that she is a citizen of the Choctaw Nation, and resides near Atlee, in the Chickasaw Nation, and that the
On the 30th day of September, 1901, there was an application by complainant for a restraining order, reading:' “To the Hon. Judge of'said Court: Now comes the plaintiff, Mrs. Hattie Woods, in the above styled and entitled cause, and respectfully shows to the court that she is the owner and entitled to the possession of the lands described in plaintiff's amended complaint filed herein on the 23d day of January, 1901; that she has rented said lands for the year 1901 to various tenants, and through said tenants she is in possession of the same; that the rents on said lands are now due and payable; that defendant is harassing the tenants on said lands, and is interfering with the payment and collection of rents thereon; that defendant is endeavoring to collect said rents by threatening the tenants on said lands; that, unless defendant be restrained, a multiplicity of suits will result to collect the rents. That plaintiff is in possession of the children named in plaintiff's amended complaint filed herein on January 23, 1901, and that she is a suitable av.d proper person to have the care, custody, and keeping of said children; that defendant is interfering with plaintiff’s possession of said children; that defendant is a shiftless, worthless person; that he is wholly insolvent, and that plaintiff has no adequate remedy at law, and that, unless defendant is restrained from interfering with plaintiff’s possession of said land, and with the payment of rents and collection of rents thereon, great and irreparable injury will be done; the defendant is threatening' to
Upon the same day the trial judge entered an order restraining the respondent from collecting rents, etc., until the court’s further order. That order reads: “Now, on this 26th day of September, 1901, came on to be heard the plaintiff’s application for temporary restraining order, restraining defendant, his agents, servants, employes, and those acting through or under him, from interfering with plaintiff’s possession of the hereinafter described lands, from harassing the tenants, and from interfering with the payment and collection of rents thereon, and from interfering with plaintiff’s possession of the hereinafter named children. The court being fully advised in the premises, it is adjudged and ordered that the defendant, G. W. Woods, his agents, servants, employes, and those acting through and under him, be, and is hereby, until further order of the court, restrained and enjoined from harassing the tenants on, from collecting or attempting to collect the rents, from exercising any
On October 18, 1901, upon motion of respondent, the temporary injunction was modified, and E. E. Morris was appointed receiver to collect the rents from the lands in controversy, except from the lands occupied by one Miller, and to hold same until court’s further order. November 2, 1901, the defendant answered: “Now comes the defendant, G. W. Woods, and, for his answer to the plaintiff’s complaint filed herein, denies, each and every, all and singular, the averments therein contained, except such as may be hereinafter specifically admitted. Defendant admits that the plaintiff is a citizen of the Choctaw Nation, but denies that he is a citizen of the United States, but asserts the fact to be that he is a citizen of the Choctaw Nation by intermarriage. Defendant admits that he and the plaintiff were married at the time and place set out in plaintiff's complaint. Defendant denies that he has for the past four years, or ever at any time, treated the plaintiff in a barbarous and cruel manner, or offered her any indignities whatever; denies that he ever attempted or threatened her life, or ever cursed or abused her, but alleges the fact to be that he always treated her in a kind, considerate, and loving manner, and performed always the duties of a kind and loving husband. Defendant admits that they have, as an issue of said marriage, two children as set forth in plaintiff’s
The cause was referred to the master to take the evidence. His report was filed, and to this respondent filed certain exceptions. “Now comes the defendant, George W. Woods, in the above styled and entitled cause, and excepts to the master's report herein for the following reasons, to wit: That said master’s report is incorrect, as based upon errors of law appearing in the record. Defendant excepts to the finding of the master in which he holds that the defendant has not been enrolled as an Indian citizen, and that he would not be entitled to an interest in the land in controversy unless he was finally enrolled as an Indian citizen. Defendant excepts to that finding of the master which seeks to vest the title to the lands in controversy permanently in the plaintiff, because the title to said lands was not inissue in said cause. Defendant excepts to that portion of the- master’s report in which he holds that the places were the separate property of the plkintiff, inasmuch as the testimony shows that the lands were put in by the plaintiff and defendant during their married life, and would be, in law, community property. Defendant excepts to that portion of the master’s report which finds that the plaintiff’s allegations of cruel and abusive treatment were sustained by the testimony. Defendant excepts to that portion of the master’s report which finds that the defendant’s allegations of the infidelity of his wife were not sustained by the testimony. Defendant excepts to that portion of the master's report which finds that the plaintiff is entitled to the custody of the children. Defendant excepts to that portion of the master’s report which subjects money in the hands of a receiver to to the payment of costs in this action, inasmuch as the order under which the receiver was appointed allowed him to collect and hold said money only. Defendant excepts to that portion of the meter's finding which vests the title to the property in
Upon hearing the court entered the following decree: “This cause this day came on to be heard upon the report of the master in chancery filed herein, together with the exceptions thereto; and the court, having heard the same, and being fully advised in the premises, overrules said exceptions and confirms said report. It is therefore ordered, adjudged, and decreed by the court that the said report be, and the same is hereby, in all things confirmed'. It is therefore ordered, adjudged, and decreed that the bonds of matrimony heretofore existing between the plaintiff and defendant be, and the same are hereby, forever dissolved. It is further ordered, adjudged, and decreed by the court that the plaintiff, Hattie Woods, do have the care and custody .of the children, Willie Mitchell Woods and Eddie Woods, until the further order of the court, and that the said defendant be, and is hereby, permitted to visit said children at all reasonable times, and that he be permitted to furnish them such support as he may desire. It is further ordered, adjudged, and decreed by the court that the plaintiff, Hattie Woods, do have and recover from the defendant, Geo. W. Woods, and all persons claiming or holding under him, the possession of the
On November 2, 1901, the following order appears to have been entered: “Master's report confirmed, to which the defendant excepts, and prays an appeal to the Court of Appeals of the Indian Territory, which is granted, and the defendant is allowed 60 days to prepare and file his bill of exceptions.”
The question at once presents itself whether or not a party can appeal from an order confirming the report of a master in chancery. In other words, is it a final order? Should not appellant have waited until a decree had been entered disposing of the cause, and then, if dissatisfied with the outcome of the
But there is another question presented, equally fatal to the appellant here. An examination will at once reveal the fact that there is no assignment of errors anywhere with the record. That being so, what is there before this court? Absolutely nothing. “The assignment of errors is, in effect, the ■complaint in the appellate tribunal, and hence it is necessary that it should be so framed that issue can be joined upori it. It is the pleading which calls into exercise the appellate power, and without it that power is not invoked. By it the case is brought into the appellate court, and upon it is formed the issue or issues on which judgment is given in all cases except those in which a question outside of the record is presented in an appropriate mode. In all cases where a review of previously decided questions is sought, errors must be properly assigned,
Appeal dismissed.