Clayton, J.
There was no bill of exceptions filed in this case, and, as a motion for new trial can only be brought upon the record and before us by that means, whatever the fact may be, as far as we are concerned, it must be taken that there was no motion for a new trial filed in this case. It is contended by the appellee that in such case there is nothing before us for our determination, and that therefore the appeal should be dismissed. It has been many times decided by the supreme court of Arkansas, in passing on our statute in relation to this matter, that a motion for a new trial is not necessary when the error appears from the record itself, without the intervention of a bill of exceptions. In Smith vs Hollis, 46 Ark. 21, that court say: "A motion for a new trial is unnecessary where the errors complained of do not grow out of the evidence or instructions, but appear from the record itself without the intervention of a bill of exceptions. In Steck vs Mahar, 26 Ark. 536, the court say: “A motion for a new trial is essential to correct the errors growing out of the evidence or instructions, before an appeal can be entertained by this court. Where the error complained of does not relate to errors growing out of the evidence or instructions, but is apparent from the récord, without the intervention of a bill of exceptions, there is no necessity for making a motion for a new trial, and the cause in such ease can [466]*466be brought to this court without making the motion; but in cases where the error complained of does not appear of record, save by the intervention of a bill of exceptions, a motion for a new trial must be made, before appeal will lie to this court.” In the case of Worthington vs Welch, 27 Ark. 464, the supreme court of Arkansas say: “Was such a motion necessary in the case before us? To answer this question, it is only necessary to reiterate, in brief, the general principles so clearly enunciated in the case of Steck vs Mahar, 23 Ark. 536, and reaffirmed in the case of Merriweather vs Erwin, decided at the last term, and which seem so certainly to be contemplated by our Code of Practice, namely: 'In any case where the proceedings excepted to as erroneous appear in the records proper of the court, and the errors can be examined into and ascertained by simply reviewing such records such case may be brought to this court for review by writ of error or by appeal, without a motion for a new trial.’ On the other hand in all cases where "the proceedings complained of as erroneous are, in their nature, extrinsic of the records proper of the court, or when the proceedings objected to appear in the records proper, but the errors complained of cannot be ascertained without considering the proceedings in relation thereto that are extrinsic of such records, such proceedings or matters must be saved by bill of exceptions. And the only method known to the law by which they may be so saved is that they may be tendered to the judge upon his overruling a motion for a new trial, and signed and ordered filed by him.” To the same effect are Ward vs Carlton, 26 Ark. 663; Merriweather vs Erwin, 27 Ark. 37; Union Co. vs Smith, 34 Ark. 684; Badgett vs Jordan, 32 Ark. 154; Douglass vs Flynn, 43 Ark. 408; Error in rulings on demurrers, relating to the pleadings, may be reviewed on exceptions without a motion for a new trial, unless waived or cured by answering over. Clark vs Hare, 39 Ark. 258. And this seems to be the rule in all of the states which haAm passed upon this question, except West Virginia. [467]*467See authorities cited in 14 Enc. PI. & Prac. 829, tit. “New Trials,” note 1.
Inasmuch as there was neither a bill of exceptions nor a motion for a new trial filed in this case, the only matter’ before us for review is the alleged error appearing upon the face of the record proper; and that is, was the defendants' demurrer to the last amended complaint of the plaintiff properly overruled? The record of the judgment, in part, sets out that: “On this 8th day of February, 1901, being one of days of the regular December 1900, term of this court, this cause came on for trial; the plaintiff Andrew McAffrey having heretofore been stricken from the complaint by order of court, and the plaintiff having amended the complaint to conform to the proceedings herein. The defendants filed their demurrer to the complaint, which demurrer was overruled by the court, and to which the defendants excepted whereupon the defendants elected to stand upon their demurrer.” The fourth paragraph of the demurrer is as follows: “Defendants demur to the complaint herein because, as it now stands, -the Cherokee Nation, only, is a party plaintiff, and, the original party plaintiff having no cause of action, the entire action failed when he was stricken out as party plaintiff,” — which simply means that there is a defect of the complaint as to the party plaintiff, and the fourth paragraph of section 5028, Mansf. Dig. (Ind. Ter. St. 1899, § 3233,) provides that the defendant may demur to the complaint when there is a defect of parties plaintiff. McAffreys’ complaint shows no other title or right of action in him than that he is a Cherokee citizen, and is entitled to hold and own improvements on the public domain of the Cherokee Nation and that he desires to get possession of the land and improvements in suit for the purpose of allottment and that the defendants had improved such lands under the claim of citizenship; that the said claim of citizenship had been disallowed by the Dawes commission and the courts; and that [468]*468the value of their improvements had been tendered to them under the act of congress of March 3, 1893. It is clear that in an ordinary action of ejectment the claim of title and right of possession set up by McAffrey in his original and amended complaints would be wholly insufficient to sustain the action as to him; neither would he be permitted to substitute for himself as party plaintiff by amendment, as was done in this case, another, in whom title and the right of possession rested. State vs Rottaken, 34 Ark. 144. But it is contended that under the third, fourth, and sixth sections of the act of congress approved June 28, 1898 (Ind. Ter. St. 1899, §§ 57s, 57t, 57v), known as the “Curtis Bill’” under the conditions named in these sections, if the chief of the Cherokee Nation shall refuse or fail to bring an action for the possession of the lands held by such persons, then any citizen of that nation may lawfully bring the suit. The said three sections, so far as they pertain to this question, are as follows:
“That said courts are hereby'given jurisdiction in their respective districts to try cases against those who may claim to hold as members of a tribe and whose membership is denied by the tribe, but who continue to hold said lands and tenements notwithstanding the objection of the tribe; and if it be found upon trial that the same are held unlawfully against the tribe by those claiming to be members thereof, and the membership and right are disallowed by the commission to the Five Tribes, or the United States court, and the judgment has become final, than said court shall cause the parties charged with unlawfully holding said possession to be removed from the same and cause the lands and tenements to be restored to the person or persons or nation or tribe of Indians entitled to the possession of the same.
“That all persons who have heretofore made improvements on lands belonging to any one of the said tribes of Indians, claiming rights of citizenship, whose claims have been decided [469]
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Clayton, J.
There was no bill of exceptions filed in this case, and, as a motion for new trial can only be brought upon the record and before us by that means, whatever the fact may be, as far as we are concerned, it must be taken that there was no motion for a new trial filed in this case. It is contended by the appellee that in such case there is nothing before us for our determination, and that therefore the appeal should be dismissed. It has been many times decided by the supreme court of Arkansas, in passing on our statute in relation to this matter, that a motion for a new trial is not necessary when the error appears from the record itself, without the intervention of a bill of exceptions. In Smith vs Hollis, 46 Ark. 21, that court say: "A motion for a new trial is unnecessary where the errors complained of do not grow out of the evidence or instructions, but appear from the record itself without the intervention of a bill of exceptions. In Steck vs Mahar, 26 Ark. 536, the court say: “A motion for a new trial is essential to correct the errors growing out of the evidence or instructions, before an appeal can be entertained by this court. Where the error complained of does not relate to errors growing out of the evidence or instructions, but is apparent from the récord, without the intervention of a bill of exceptions, there is no necessity for making a motion for a new trial, and the cause in such ease can [466]*466be brought to this court without making the motion; but in cases where the error complained of does not appear of record, save by the intervention of a bill of exceptions, a motion for a new trial must be made, before appeal will lie to this court.” In the case of Worthington vs Welch, 27 Ark. 464, the supreme court of Arkansas say: “Was such a motion necessary in the case before us? To answer this question, it is only necessary to reiterate, in brief, the general principles so clearly enunciated in the case of Steck vs Mahar, 23 Ark. 536, and reaffirmed in the case of Merriweather vs Erwin, decided at the last term, and which seem so certainly to be contemplated by our Code of Practice, namely: 'In any case where the proceedings excepted to as erroneous appear in the records proper of the court, and the errors can be examined into and ascertained by simply reviewing such records such case may be brought to this court for review by writ of error or by appeal, without a motion for a new trial.’ On the other hand in all cases where "the proceedings complained of as erroneous are, in their nature, extrinsic of the records proper of the court, or when the proceedings objected to appear in the records proper, but the errors complained of cannot be ascertained without considering the proceedings in relation thereto that are extrinsic of such records, such proceedings or matters must be saved by bill of exceptions. And the only method known to the law by which they may be so saved is that they may be tendered to the judge upon his overruling a motion for a new trial, and signed and ordered filed by him.” To the same effect are Ward vs Carlton, 26 Ark. 663; Merriweather vs Erwin, 27 Ark. 37; Union Co. vs Smith, 34 Ark. 684; Badgett vs Jordan, 32 Ark. 154; Douglass vs Flynn, 43 Ark. 408; Error in rulings on demurrers, relating to the pleadings, may be reviewed on exceptions without a motion for a new trial, unless waived or cured by answering over. Clark vs Hare, 39 Ark. 258. And this seems to be the rule in all of the states which haAm passed upon this question, except West Virginia. [467]*467See authorities cited in 14 Enc. PI. & Prac. 829, tit. “New Trials,” note 1.
Inasmuch as there was neither a bill of exceptions nor a motion for a new trial filed in this case, the only matter’ before us for review is the alleged error appearing upon the face of the record proper; and that is, was the defendants' demurrer to the last amended complaint of the plaintiff properly overruled? The record of the judgment, in part, sets out that: “On this 8th day of February, 1901, being one of days of the regular December 1900, term of this court, this cause came on for trial; the plaintiff Andrew McAffrey having heretofore been stricken from the complaint by order of court, and the plaintiff having amended the complaint to conform to the proceedings herein. The defendants filed their demurrer to the complaint, which demurrer was overruled by the court, and to which the defendants excepted whereupon the defendants elected to stand upon their demurrer.” The fourth paragraph of the demurrer is as follows: “Defendants demur to the complaint herein because, as it now stands, -the Cherokee Nation, only, is a party plaintiff, and, the original party plaintiff having no cause of action, the entire action failed when he was stricken out as party plaintiff,” — which simply means that there is a defect of the complaint as to the party plaintiff, and the fourth paragraph of section 5028, Mansf. Dig. (Ind. Ter. St. 1899, § 3233,) provides that the defendant may demur to the complaint when there is a defect of parties plaintiff. McAffreys’ complaint shows no other title or right of action in him than that he is a Cherokee citizen, and is entitled to hold and own improvements on the public domain of the Cherokee Nation and that he desires to get possession of the land and improvements in suit for the purpose of allottment and that the defendants had improved such lands under the claim of citizenship; that the said claim of citizenship had been disallowed by the Dawes commission and the courts; and that [468]*468the value of their improvements had been tendered to them under the act of congress of March 3, 1893. It is clear that in an ordinary action of ejectment the claim of title and right of possession set up by McAffrey in his original and amended complaints would be wholly insufficient to sustain the action as to him; neither would he be permitted to substitute for himself as party plaintiff by amendment, as was done in this case, another, in whom title and the right of possession rested. State vs Rottaken, 34 Ark. 144. But it is contended that under the third, fourth, and sixth sections of the act of congress approved June 28, 1898 (Ind. Ter. St. 1899, §§ 57s, 57t, 57v), known as the “Curtis Bill’” under the conditions named in these sections, if the chief of the Cherokee Nation shall refuse or fail to bring an action for the possession of the lands held by such persons, then any citizen of that nation may lawfully bring the suit. The said three sections, so far as they pertain to this question, are as follows:
“That said courts are hereby'given jurisdiction in their respective districts to try cases against those who may claim to hold as members of a tribe and whose membership is denied by the tribe, but who continue to hold said lands and tenements notwithstanding the objection of the tribe; and if it be found upon trial that the same are held unlawfully against the tribe by those claiming to be members thereof, and the membership and right are disallowed by the commission to the Five Tribes, or the United States court, and the judgment has become final, than said court shall cause the parties charged with unlawfully holding said possession to be removed from the same and cause the lands and tenements to be restored to the person or persons or nation or tribe of Indians entitled to the possession of the same.
“That all persons who have heretofore made improvements on lands belonging to any one of the said tribes of Indians, claiming rights of citizenship, whose claims have been decided [469]*469adversely under the act of congress approved June 10, 1896, shall have possession thereof, until and including December thirty-first, 1898; and may, prior to that time, sell or dispose of the same to any member of the tribe owning the land who desires to take the same in his allotment: provided that this section shall not apply to improvements which have been appraised and paid for, or payment tendered by the Cherokee Nation under the agreement with the United States approved by congress March 3, 1893.
“That the summons shall not issue in such action until the chief or governor of the tribe, or persons or person bringing suit in his own behalf, shall have filed a sworn complaint, on behalf of the tribe or himself, with the court, which shall as near as practicable, describe the premises so detained and shall set forth a detention without the consent of the person bringing said suit or the tribe, by one whose membership is denied by it: provided, that if the chief or governor refuse or fail to bring suit in behalf of the tribe, then any member of the tribe may make complaint and bring suit.”
The complaint of McAffrey sets up just such a state of facts against the defendants as is provided for by that part of section 3 above set out; and the complaint alleges that the money provided for by act of congress of March 3, 1893, had been lawfully tendered, and that the notice as prescribed for in section 5 had been duly served, and that the chief of the Cherokee Nation had failed to bring the suit, in which event the latter clause of section 6 provides that “any member of the tribe may make complaint and bring suit.”
And this, in strict compliance with the act, McAffrey did-Whether a private citizen of the Cherokee Nation, with no other right, can bring such suit because of the mere failure of the chief to do so, when there has been no demand or request made to him [470]*470to bring the action, is a question not raised in this proceeding, because the complaint alleges, in the very words of the statute, that he failed to bring the suit, and, there having been no motion filed to make it more certain, the demurrer admitted the failure, in the sense of the word used in the statute. We are of the qpinión, however, that no private citizen can bring and maintain the suit in his own behalf until the chief has first been demanded or requested to do so, and has refused or. failed to comply with the demand or request. The statute gives the chief the first right, and it uses the word “refused,” clearly implying a demand, for without it there can be no refusal; and the word “failure” is introduced in the statute to cover a case where there is no refusal, but mere laches or failure to comply with the demand to bring the suit. Inasmuch as the complaint alleges everything necessary for the foundation of a suit upon the first clause of the third section of the act, and it is alleged that the chief had failed to bring the suit, and as the statute provides that in such case any member of the tribe may make complaint and bring suit,, and McAffrey being a member of the tribe, it seems to us clear that ho is a proper party to the action; and, being such, it was competent for the court, upon the motion of the plaintiff, by an amendment, to make the Cherokee Nation in which the legal title was vested, a party to the suit. See section 5080, Mansf. Dig. (§ 3285, Ind. Ter. St. 1899), tit. “Amendments.” We think, however, that the name of McAffrey should not have been stricken from the complaint as a party plaintiff; but as any final judgment rendered in the case for or against the Cherokee Nation would be a bar to any other proceedings, and as no one was affected by it but McAffrey himself, the defendants are not harmed, and cannot complain, and McAffrey has not- appealed.
The second paragraph of the demurrer is that “the complaint does not allege that the Cherokee Nation has paid defend[471]*471ants for their improvements, or that the Cherokee Nation has kept its tender good, or facts from which it can be inferred.” The statute does not require this. The complaint alleges that a tender of the money was made to defendants and was refused by them, and the latter clause of section 4 of the Curtis Bill makes a tender alone sufficient.
The third paragraph of the demurrer is that “defendants demur to that portion of the complaint in which plaintiff seeks to recover damages for' the detention of the premises sued for.” The complaint only claims damages for the rental value of the lands during the pendency of the suit, and this the plaintiff is clearly entitled to recover. See section 2637, Mansf. Dig. (section 1921, Ind. Ter. St. 1899.) In an action for the recovery of re.al estate, the statute above cited provides that, “if the plaintiff prevail in the action, he shall recover by way of damages the rents and profits down to the time of- assessing the same.” And in this action there can be no doubt but that the plaintiff if he prevail, may recover rents and profits, at least from the time that the suit was instituted; and this is all that the complaint demands.
There are other specifications in the assignment of error than those above mentioned, but they all relate to matters which are not of the record proper, and, as before stated¿ there having been no bill of exceptions to bring these matters upon the record, they are not properly before us.
Finding no error in, the proceedings and judgment below, the same is affirmed.