Boudinot v. Boudinot

2 Indian Terr. 107

• Court: Court Of Appeals Of Indian Territory
• Decided: January 12, 1899
• Status: Published

Opinion

Townsend, J.

This case involves the construction of section 28 of the act of congress approved June 28, 1898, known as the “Curtis Law.” The section is quoted in the statement of this case. It provides that all cases, civil and criminal, pending in the tribal courts on the 1st day of July, 1898, shall be transferred to the United States Court in the Indian Territory by filing with the clerk of the court the original papers in the suit. On the 30th day of Augnst, 1898, the certificate of Ben Johnson, ex-clerk of the Tahlequah district court of the Cherokee Nation, and the papers in the case, were filed in the United States court at Tahlequah. A motion to dismiss, as set forth in the statement, and the ruling of the court thereon, followed, which brings the case to this court.

This court is of the opinion that the plaintiff had complied with the law of congress, as set forth, in section 28, in the statement of this case in the filing of the papers, and the certificate of the Cherokee clerk, with the clerk of the United States Court at Tahlequah. Under the act of congress, the case was then pending in the United States court, and should have been disposed of on its merits as a pending suit in said court. It will be seen by examining the text of the motion to dismiss, set forth in .the statement of this case, that the attorneys for the defendants appeared specially, and for the purposes of that motion only. It appears from statements made in the argument of the case that the attorneys for the plaintiff, after transferring the papers to the United States Court, served a notice in writing upon the attorneys of record for the defendants, advising them that the case had been transferred to the United States court at Tahlequah. This was the only service upon them, or upon the defendants, advising them of the transfer of the case to the United States court. The act of congress referred to does not point out any mode by which service may be obtained upon the opposite party when a case is transferred from the tribal courts to the United States court. In the absence of any express provision of statute upon this subject, this court is of the opinion that some one of the methods known to the law of obtaining service in civil suits should be pursued, in order to bring the opposite party into the federal court to which the papers have been transferred. In this case the defendants should have been brought into the United States court by virtue of a summons issued as in cases originally brought in the United States court, for the reason that it appears that there was some contention in the Cherokee court as to whether the defendants had been served with actual notice in that court. And in all cases it would be safer for the party bringing a case from the tribal court into the United States court to obtain service upon the opposite party in the same manner as if it were an original proceeding in the United States court. If this should be done, there could be no question thereafter as to whether the opposite party was properly and legally in court. In the case at bar, conceding that there was a defective service, (or even no service at all, the remedy was not by a motion to dismiss, but, if there had been a defective service, by motion to quash the service; the party making it entering a special appearance for that purpose only. If there had been no service in the case, the case should have been continued until the next term, with alias summons; but such failure of service would not be a ground for dismissal, for the reason that the case was a pending suit in court, to be disposed of under the rules of the court, upon its merits, or upon other legal grounds. The act of congress aforesaid does not state ■what shall be done with the cases when they have been filed in the United States court. We must assume, however, that such cases were transmitted to the United States court for the purpose of having them disposed of in the United States court as other cases pending in that court. There could have been no other purpose for transferring cases from the tribal courts to the United States court. Such cases, therefore, should be proceeded with in the United States courts precisely in the same manner, and under the same rules of pleadings and practice and legal liability, as if the cases had been originally brought in the United States court. If any question had been adjudicated in reference to a case in the tribal courts, such question would be deemed by the United States court as adjudicated, and all rights which had vested in any of the parties to a case by virtue of tribal laws should be secured to the litigants or parties to such cases in the same manner as rights which have vested under any laws of the United States in force in this jurisdiction. It was not the purpose of the act of congress referred to to destroy vested rights. And notwithstanding the fact that the act of congress above mentioned prohibited the United States court from enforcing, either at law or in equity any laws of the Indian tribes in the Indian Territory, yet where rights had vested under such laws the United States court would be authorized to enforce those vested rights.

Transfer of cause from Indian Court to Ü. S. Oouit. Notice to adverse party Defective service. Remedy. Enforcement t>y U. S. Court.

The question was asked in argument whether the United States court would have jurisdiction in such cases, when transferred from the tribal courts, where the amount in controversy was less than $100. While this question is not involved in the pending suit, as the amount in controversy is over $4,000, yet the question is a pertinent one, and the opinion of this court upon it may properly be submitted at this time and in this case. It is clear, from the text of the law of congress under which cases are transferred from the tribal courts to the United States court, that the papers are to be filed with the clerk of the United States court. This clearly contemplates that all cases transferred shall be filed in the United States court, and not in the United States commissioners’ courts. In the absence of any provision authorizing the United States court to transfer cases involving less than $100 in value to United States commissioners’ courts, we must assume that congress did not intend that litigants should be deprived of the right to prosecute cases involving less than $100 which may be transferred from the tribal courts. Such cases having been filed in the United States court in pursuance of law, such filing in pursuance of law confers jurisdiction upon the court in which the papers are filed to hear and determine the case, regardless of the amount in controversy. The judgment of the court below is reversed, and the cause remanded, with instructians to take further proceedings in the case in accordance with this opinion.

Transfer of cause from Indian Court, where Transferred. Springer, C. J., and Clayton, J., concur.