Barbee v. Shannon

40 S.W. 584, 1 Indian Terr. 199, 1897 Indian Terr. LEXIS 44

• Court: Court Of Appeals Of Indian Territory
• Decided: January 30, 1897
• Status: Published

Opinion

Lewis, J.

(after stating the facts). Construing sec-m 905, Rev. St., U. S., it is held by the United States rcuit Court of appeals for the Eighth circuit that the pro-edings and judgments of the courts of the Cherokee and ■eek Nations are upon the same footing, and entitled to the me faith and credit, as the proceedings and judgments of e courts of the territories of the Union. Mehlin vs Ice, 5 C. A. 403, 56 Fed. 19; Davison vs Gibson, 12 U. S. App. 4, 5 C. C. A. 543, and 56 Fed. 443; Exendine vs Pore, 6 C. A. 112, 56 Fed. 777; Standley vs Roberts, 8 C. C. A. 305, Fed. 836. These decisions are supported by the authority Mackey vs Coxe, 18 How. 100. The judgments of the irts of the territories, by the terms of the statute, stand m the same footing as the judgments of the courts of the bes. In fixing the scope and extent of section 905, the áreme Court has declared that, in a collateral attack upon idgment of the courts named therein, it is of no avail to w that there are errors in the record relied upon, unless IHy be such as prove that the court had no jurisdiction of M case, or that the judgment rendered was beyond its Hrer. Scotland Co. vs Hill, 132 U. S. 107, 10 Sup. Ct. 26; Cooper vs Reynolds, 10 Wall. 308. The record of a judg-mant rendered in one state may be contradicted, in a collateral attack in another state, as to the facts necessary tc give the court jurisdiction; and, if it be shown that such fact! did not exist, the record will be regarded as a nullity, not withstanding it may be recited that they did exist. Want o: jurisdiction may be shown either as to the subject-matter oí as to the person, or, in proceedings in rem, as to the tliini Thompson vs Whitman, 18 Wall. 451. A judgment of a state court or of courts of the United States cannot be impeached collaterally in courts of other states or of the United State: for errors of law or practice. Town of Lyons vs Munson 99 U. S. 684; Cooper vs Reynolds, 10 Wall. 308; Marchand v. Frellsen, 105 U. S. 423; Trust Co. vs Seasongood, 130 U. S 482, 9 Sup. Ct. 575. A judgment of a state court may not b( impeached collaterally in the-court of another state, or in ¡ United States Court, on the ground of fraud. Christmas v. Russell, 5 Wall. 290; Maxwell vs Stewart, 21 Wall. 71; Ids. 22 Wall. 77; Nougue vs Clapp, 101 U. S. 551; Graham vs Railroad Co., 118 U. S. 161, 6 Sup. Ct. 1009; Simmons vs Saul 138 U. S. 439, 11 Sup. Ct. 369; Randolph vs King, 2 Bond, 104, Fed. Cas. No. 11,560; Amory vs Amory, 3 Biss. 266, Fed) Cas. No. 334. The facts and questions of law decided by judgment are generally considered res adjudicata. Thu: the construction of a state constitution or a state statute, th decision of the court as to the character of the judgment! whether interlocutory or final, and the finding of the com as to fraud or testamentary capacity, are conclusive. Mill vs Duryea, 7 Cranch, 481; Hampton vs McConnell, 3 Wheat. 234; Board of Public Works vs Columbia College, 17 Wal 521. A decree dismissing a complaint entitling the defen' ant to recover costs, set up as a plea in bar, is conclusive, ij dismissal is not, in direct terms, “without prejudice.” Lyo vs Manufacturing Co., 125 U. S. 698, 8 Sup. Ct. 1024.

In applying these rules to the case in hqmd, the fir: question that arises is, has the Creek Court rendered a judf. nent determining the rights of the parties as to the. matters low in controversy? An order from N. B. Childers, judge >f the Coweta district, Creek Nation, commanding the light íorsemen of the district to destroy certain fences, is in evi-lence. It is shown that, pursuant to this order, the fences 1 aimed by appellee Shannon upon the land in controversy /ere cut by the Indian officer. Whether the order of Judge ¡hilders was the result of a hearing; whether it is a judg-íent, or a writ of execution based upon a judgment, of a ourt, — is<not shown by any record in proof. We think this rder cannot be regarded as a judgment to which the faith ud credit commanded by the statute must be given. But, ibsequent to its issuance, appellee Shannon filed suit ainst appellants in the Creek Court, Coweta district; and íat court, upon hearing (Judge Mingo presiding,) with both irties present and represented by counsel, entered a judg-ent dismissing the case upon the finding (clearly made and /pressed) that the same had been legally and properly ought before Judge N. B. Childers and adjudicated, and e judgment of the court enforced, and the wire fences ilt and claimed by said Shannon cut down by the light irsemen of the district. Upon the day of the rendition of is judgment, appellee Shannon was officially notified by e judge rendering the same to take down and remove all re fences inclosing any pasture or pastures claimed, ned, or used by him in the contracted pasture known as “Smith, Willison, Weldon & Barbee Pasture Company’s ,sture, ” under penalty of having said order enforced after days by the proper authorities. In recognition of the |lgment rendered by Judge Mingo, the principal chief of nation canceled the lease he had heretofore made to ellees Shannon & Nixon. The judgment of Judge Mingo, |ted by the requirements of our law, is informal and defec-It is, however, sufficient to show a dismissal of the It because of a former adjudication between the parties to the latter proceedings,- and that the same was- adverse to Shannon, and resulted in the cutting of his fences. The notice following is evidently based upon the judgment found! to have been rendered by Judge. Childers. True, it is claimed that Judge Childers'never rendered a judgment, but that is immaterial in this controversy. Judge Mingo found that he] had rendered judgment, and for that reason he dismissed th' case, and gave a notice in way of enforcement of the juds ment he found to exist. The finding by Judge Mingo that ¿ judgment adjudicating the rights of the parties had bee: made, and of the effect thereof, is binding upon this court, and is as effectual as if such judgment had in fact bee: rendered. A judgment of dismissal may be pleaded, and th findings of fact upon which it is based cannot be inquire' into in a collateral proceeding.

Judgment of Crook Court. Conclusive. Jurisdiction of Court — i?re sumption in favor.

Much of the testimony in the record goes to show thal the lease from the Creek Nation under which appellant] claim is illegal because not made in compliance with th Creek laws upon the subject, and because the grant was i: excess of the authority of the principal chief. The jud, ment of the Creek court precludes our consideration of the: questions. We cannot review errors of law or practice i| such courts, when their judgments are presented to u unless such errors are jurisdictional. Cornells vs Shannon 27 U. S. App. 329, 11 C. C. A. 465, and 63 Fed. 305.

' It is further ■ urged that the judgment of the Cre< court is in excess of its jurisdiction, because the amount i| controversy exceeds $100, the limit of the jurisdiction of tl| District Courts of the Creek Nation. It is enough to say this that the record does not show what the value of tl| premises in controversy was at the time of the rendition the judgment by Judge Mingo in the Creek court, and tl| presumption is in favor of the jurisdiction.

We have considered long whether we should rega: the proceedings before ■ Judge Mingo, with their pate: defects of form, or whether we should on this account disregard them entirely. In courts sometimes presided over by judges unable to write, technical correctness in procedure and in judgment cannot be expected. To require it is practically to annul all their proceedings and decrees. To comply with the statute, and to give faith and credit to the judgmentS'Of these tribunals, we must look beyond the form, and enforce the manifest intent, gathered broadly from the intire proceedings. This we have done in the present case, aelieving it to be in accord with the spirit of the decisions of he Circuit Court of Appeals, and further illustrated in Talton vs Mayes (decided May 18, 1896) 16 Sup. Ct. 986. We onclude that appellee Shannon, having invoked the jurisdic-ion of the Creek Court, is bound in this action by its judg-uent therein rendered. Cornells vs Shannon, supra. As to he other appellee, Thomas Grayson, his claim to the preña-ses in controversy rests upon a sale of the reversionary .terest of Richard Nixon, Shannon’s lessor, upon the de-rmination of Shannon’s lease. The sale was not upon a onsideration paid or fixed by agreement, and therefore assed no right. It is suggested that by the lease from ap-ellants Barbee, Wiilison & Weldon to the appellants dwards Bros., the appellants first mentioned were not titled to the possession of the premises at the time of the stitution of the suit, but their lessees were so entitled, and at, therefore, the parties first named cannot maintain this tion. In 1 Tayl. Landl. & Ten. 190, it is said: “If any e interferes with his tenants so far as to disturb their en-[yment, and thereby cause loss of rent or other damage, e landlord may have an action; and, if the disturbance is mtinued, he may from time to time bring a fresh action. ” is statement is supported by the decisions in Shadwell vs Hutchinson, 2 Barn. & Adol. 33, and in Aldridge vs Stuyvesant, 1 Hall, 210. In the first case, tried before Chief Justice nterden, it is held that it is no defense to an action for obstructing ancient lights that the nuisance merely affects the plaintiff’s rights as reversioner, and that he has already, in a former action, recovered against the defendant for the same obstruction. In the last case it was held that an action lies in favor of a landlord against any person who so wrongfully and maliciously disturbs his tenants that they abandon his premises, and the landlord thereby loses his rent. No reason is perceived why the rule should not be the same if the disturbance does not cause the tenants to leave the pre-| mises, but results in damage for which the landlord mus' respond to them. In this case it alleged that the tenants,) Edward Bros., had rented the premises for the purposes o: pasturing cattle, and that they had a large number of cattl in the pasture, and that by the trespass of the appellee, their possession was disturbed, and they were exposed t damage. Under these allegations, we think the landlor had a right of action, notwithstanding the right of pos session, under the' terms of the lease, still in his tenants) Furthermore, it is well established that the landlord ma; maintain actions, for the protection of his reversionar, interest, for such injuries as wpuld, in the ordinary course o| things, continue to affect such interest after the terminatia of the lease, whether the injury be committed by a tenam an undertenant, or a stranger, and whether the term slm have expired or not. Of such actions are those for protec ing -the windows of a house, stopping up a rivulet, whereb| the timber becomes rotten, the erection of unwholeso: nuisance near the premises, undermining the foundation a house, cutting down trees, and the like. Tayl. Landl. Ten. art. 173; Lachman vs Deisch, 71 Ill. 59; Brown v. Bridges, 31 Iowa 138. In the latter case it was decided th the landlord might have an action for throwing down fenc<| while the premises were in possession of a tenant; such r jury being damage to the real estate, and therefore to t reversionary interest. We conclude that the appellant lanj lords in this case, under the allegations that the appellee's were erecting fences upon their premises, had a right of action therefor.

Judgment oí Oreok Court - Intent to be enforced. Sale without consideration —No right passes. Right of action of reversioner. Equity, Mui-tij>licUy oi s^-

The contention is further made that, if the appellants had a right of action at all, their action should have been at law. Equitable jurisdiction, in our judgment, can be sustained upon distinct grounds. It is alleged and proven that appellees were entering in and upon a portion of the premises adjudged by the Creek Court to belong to appellants, and had run a wire fence across the same, inclosing nearly 1,000 acres of said pasture, and threatened to turn their own cattle in and upon the same, and to use and graze it, to the exclusion of the appellants and their lessees. In 2 Beach, Inj. 1146, it is said: “A trespass upon real property, effected by m unlawful structure, is continuous in its nature, and gives eparate, successive causes of action from time to time, jarred only by the running of the statute of limitations, igainst the successive trespasses.” This statement of the aw is abundantly supported by the authorities cited by the buthor. The principle upon which equitable relief is grant-r r r ° d in such cases is the avoidance of a multiplicity of suits; uch multiplicity not necessarily and solely arising from the xistenee of a number of parties for or against whom a cause ay exist, as held in Carney vs Hadley (Fla.) 14 South. 4, ut arising from the necessity of bringing many and succes,ive suits at law to obtain full redress for a continuous rong. “Jurisdiction of equity arises by reason of the ecessity of repeated actions at law to redress the owner’s rievance, and .must, from the nature of the case, continue long as that necessity exists. ” Galway vs Railway Co., 28 N. Y. 132, 28 N. E. 479. That this is one of the grounds ion which equity interferes to avoid a multiplicity of suits stated by Mr. Pomeroy in his work on Equity Jurispru- ' ¡nee (volume 1, § 264), and is supported by an array of thorities cited by him. The rule has been acted upon in every variety of trespass. Thus, in Iowa, where a cropper for shares turned cattle upon plaintiff’s land before the crop was harvested, it was decided that the owner of the land, to avoid a multiplicity of suits, might have an injunction to prevent repeated trespass thereon without alleging irreparable injury or the insolvency of the defendant. Tantlinger vs Sullivan, 80 Iowa, 218, 45 N. W. 765. To the same effect was it'held in that state in a case where défendant falsely claimed that there was a highway upon plaintiff’s land, and repeatedly tore down his fence and passed over his premises, ■ and threatened to continue to do so. Ladd vs Osborne, 79 Iowa 93, 44 N. W. 235. Of like effect, upon similar facts, is the decision in Shaffer vs Stull, 32 Neb. 94, 48 N. W. 882. An injunction was granted when a trespass already committed by a road overseer in removing obstructions from an alleged highway, which had no existence, would probably| be indefinitely repeated. Smithers vs Fitch, 82 Cal. 153, 22 Pac. 935. And so it was held that when defendant had pile' heavy boulders on plaintiff’s lot, and plaintiff’s only remed at law was repeated actions for damages, injunction shoub be granted. Wheelock vs Noonan, 108 N. Y. 179, 15 N. E. 67. For other applications of the rule, see, also, Slack vs. Lawrence Tp. (N. J. Ch.) 19 Atl. 663; Warren Mills vs New Orleans Seed Co., 65 Miss. 391, 4 South. 298; Ellis vs Wren, 84 Ky. 234, 1 S. W. 440. It is believed further that tin equitable jurisdiction should be sustained upon the gronn that, under the peculiar circumstances of the case, appellant! had not, at law, a remedy so plain, adequate, and complet as in equity. Appellants had leased the land trespassed u; on to Edwards Bros., who were pasturing cattle. Unde| given circumstances, appellants might become liable for co: sequen fcial damages because of Edwards Bros. ’ failure to e: joy the leased premises. For their trespass, appellees we: liable to respond in damages, the measure whereof mig' not by any means be as comprehensive as the damages f which appellants might become liable to their lessees. In other words, appellants by appellees ’ wrong might be made liable for greater damage than they could recover. Under such circumstances the remedy at law cannot be held ■ to be as plain, adequate, and complete as the equitable remedy. As said by the Supreme Court of the United States, it is not inough that there exists a remedy at law; it must be plain, adequate, and complete, — in other words, direct and effective, and as sufficient to the ends of justice as the remedy in quity. Boyce vs Grundy, 3 Pet. 210; Sullivan vs Railroad Co., 94 U. S. 806. So, also, it will give its aid, says that ourt, when the injury is of such a nature that it cannot be adequately compensated by damages at law. Parker vs Manufacturing Co., 2 Black. 544; Wylie vs Coxe, 15 How. 15. This record discloses that these litigants have been ndeavoring for nearly six years to obtain at law a seftle-nent of their controversies. Twice have they applied to the uthorities of the Creek Nation, and twice to the United States Court in the Indian Territory. We think that they hould not now be met with the barren formula that there is n adequate remedy at law, but that the jurisdiction and the emedies in equity are ample to give present relief, and to |nd this long drawn controversy. The judgment of the urt below will be reversed, and here rendered for appel-nts, who will be granted the relief in equity prayed for.

Remedy at law must be adequate. Kilgore, J., concurs.