McClellan v. Kerby

Court Of Appeals Of Indian Territory

McClellan v. Kerby

76 S.W. 295, 4 Indian Terr. 736, 1903 Indian Terr. LEXIS 25

CourtCourt Of Appeals Of Indian Territory

DecidedSeptember 23, 1903

StatusPublished

This text of 76 S.W. 295 (McClellan v. Kerby) is published on Counsel Stack Legal Research, covering Court Of Appeals Of Indian Territory primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McClellan v. Kerby, 76 S.W. 295, 4 Indian Terr. 736, 1903 Indian Terr. LEXIS 25 (Conn. 1903).

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Opinion

Gill, C. J.

The following is the assignment of errors: “ (1) It was error to allow purchaser to come into the suit at the same time. (2) It was error to hold the appellants guilty of contempt of making an hone'st contest of the question raised in a court of competent jurisdiction. (3) It was error to enjoin them upon ex parte proof or no proof at all. (4) It was error' to enjoin them, because the contention of the appellant Rachel McClellan was lawful, and was not res adjudicata. (5) It was error in the court to order the sale of the whole property without first ascertaining the value of the property which belonged to the appellees Kerby and Pyeatt, and for which the farm was bought, because the trust implied for the benefit of the owners of the property, which was the purchase price, could only be enforced to the extent of the value of the property which bought the farm and interest thereon.”

It does not appear in the record that the purchaser was allowed to come into the suit at any time or any place; there[746]*746for there is nothing in the first assignment for this court to consider. It does not appear that the appellant was adjudged guilty of contempt of court in the judgment of the court below consequently there is nothing in the second assignment of error for this court to consider.

In the third and fourth assignments of error there is nothing fore this court to consider, for the reason that the court below was vested with full authority to enforce its judgments, to set the same aside, and to punish, if it saw fit, parties interfering with sales ordered by the court, and to enjoin parties, whether defendants or other parties, from interfering with sales ordered by the court.

As to the fifth contention of the appellants, the court was vested with full power to order the sale of the property under the law and in accordance with the mandate of the Circuit Court of Appeals. Finding no error whatever in this record, the judgment, of the court below must be affirmed, and it is affirmed.

Clayton, Raymond, and Townsend, JJ., concur.

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Gill, C. J.

The following is the assignment of errors: “ (1) It was error to allow purchaser to come into the suit at the same time. (2) It was error to hold the appellants guilty of contempt of making an hone'st contest of the question raised in a court of competent jurisdiction. (3) It was error to enjoin them upon ex parte proof or no proof at all. (4) It was error' to enjoin them, because the contention of the appellant Rachel McClellan was lawful, and was not res adjudicata. (5) It was error in the court to order the sale of the whole property without first ascertaining the value of the property which belonged to the appellees Kerby and Pyeatt, and for which the farm was bought, because the trust implied for the benefit of the owners of the property, which was the purchase price, could only be enforced to the extent of the value of the property which bought the farm and interest thereon.”

It does not appear in the record that the purchaser was allowed to come into the suit at any time or any place; there[746]*746for there is nothing in the first assignment for this court to consider. It does not appear that the appellant was adjudged guilty of contempt of court in the judgment of the court below consequently there is nothing in the second assignment of error for this court to consider.

In the third and fourth assignments of error there is nothing fore this court to consider, for the reason that the court below was vested with full authority to enforce its judgments, to set the same aside, and to punish, if it saw fit, parties interfering with sales ordered by the court, and to enjoin parties, whether defendants or other parties, from interfering with sales ordered by the court.

As to the fifth contention of the appellants, the court was vested with full power to order the sale of the property under the law and in accordance with the mandate of the Circuit Court of Appeals. Finding no error whatever in this record, the judgment, of the court below must be affirmed, and it is affirmed.

Clayton, Raymond, and Townsend, JJ., concur.

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Bluebook (online)

76 S.W. 295, 4 Indian Terr. 736, 1903 Indian Terr. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclellan-v-kerby-ctappindterr-1903.