Brief for the Respondents in Opposition — Spencer v. Gypsy Oil Co.

Offles - Supreme Court, U. $.

PILED |

DEC 27

No. 692 CHARLES ELMORE OROPLEY

“ GLERK|

Jue Sem ro eel aes

October Term, 1944.~

JAMES T. SPENCER, ADMINISTRATOR OF THE .

ESTATE OF JACKSON BARNETT,

Petitioner,

os.

GYPSY OIL COMPANY, A CORPORATION; GULF OIL

COMPANY, A CORPORATION; F. A. GILLESPIE,

ET AL., Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION TO PETI-

TIONER’S PETITION FOR WRIT OF CERTIORARI

AND TO HIS BRIEF IN SUPPORT THEREOF.

RICHARD H. WILLS,

Counsel for Respondent, Mid-Continent

Petroleum Corporation; -

VILLARD MARTIN,

Counsel for Respondent, Cushing Gaso-

line Company; |

HAROLD E. RORSCHACH,

Counsel for Respondents, F. A. Gillespie

& Sons Company and F. A. Gillespie;

JAMES B. DIGGS, Cet 24

RUSSELL G. LOWE, .

JAMES B. DIGGS, JR.,

Counsel for Respondents, Gypsy Oil -

Company and Gulf Oil Corporation.

TABLE OF CASES.

Alabama Power Co. v. Ickes, 302 U. S. 464, 82 L. ed.

OR reer re rete tat Cit T SLT kkk etd

Barnard v. Bilby, et al., 68 Okl. 63, 171 Pac. 444....--

Bilby v. Noble, 106 Okl. 302, 234 Pac. 198......---++

Carter Oil Co. v. Fleming, 117 Okl. 39, 245 Pac. 833....

Conner, et al., v. Cornell, et al., (C. CO. A. 8) 32 F. (2d)

he Since s sake W HU SAA Awe METRE RSE SETA TS

Derrisaw v. Schaffer, et al., (D. C., KE. D. Okla.) 8 Fed.

A, BEG an veer snccnverasgaseaensessasnsecns

General Talking Pictures Corp. v. Western Electric Co.,

Inc., et al., 304 U. S. 175, 82 L. od, T2TS. cs cv iseis

Harjo, et al., v. Empire Gas & Fuel Co., (C. C. A. 8) 28

i ee lee

Harris v. Davis, et al., 170 Okl. 35, 38 P. (2d) 562....

March, et al., v. Peter, et al., 179 Okl. 207, 64 P. (2d)

ey yp Rkn sae MERE EN TES PEER ESE SANS

Mars, et al., v. McDougal, et al., (C. C. A. 10) 40 F. (2d)

Re errr rr ere rT evr TT tee Ur Sa

Pope v. United States, No. 26, decided Nov. 6, 1944..

Pueblo of Picuris in State of New Mexico v. Abeyta, et

al., (C. C. A. 10) 50 F. (2d) 12..... 600s ee ee eee

Thompson v. Maxwell Land Grant & R. Co., 168 U.S.

451, 42 Li. ed. BSD 0... cc eee cece cece eeneseees

United States v. Candelaria, et al., 271 U. 8. 482, 70 L.

2. ae a Pree meiner inn aes se ek ak

United States v. Dunn, et al., (C. C. A. 8) 288 Fed.

United States v. O’Donnell, et al., 303 U. S. 501, 82 L.

i ee Whi ae sie tee eee bea Nee R REE

Verdine, et al., v. Cosden & Co., et al., 96 Okl. 52, 220

es. ny CORRS ORR Em Rae TS SOR SES Seem

Vinson, et al., v. Graham, et al., (C. C. A. 10) 44 F. (2d)

a te Poh a eek aka Bak eR ee rk we

Text Books.

34 C. J. 130, See. 331

S. Rep. 79, Seventieth Congress, 2d Sess

PAGE

30

24

29

Pe ag eas

IN THE SUPREME COURT OF THE UNITED STATES.

October Term 1944.

No. 692

JAMES T. SPENCER, ADMINISTRATOR OF THE

ESTATE OF JACKSON BARNETT,

Petitioner,

vs.

GYPSY OIL COMPANY, A CORPORATION; GULF OIL

COMPANY, A CORPORATION; F. A. GILLESPIE,

ET AL., Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION TO PETI-

TIONER’S PETITION FOR WRIT OF CERTIORARI

AND TO HIS BRIEF IN SUPPORT THEREOF.

Petitioner’s petition for certiorari will have to be de-

nied, because, as we will hereafter establish, such petition,

in the final analysis, merely calls for a review of the evi-

dence herein or inferences drawn from it, and this court has

repeatedly held that it will not grant a writ for such purpose.

The United States, which for a time was a party to

this action, obviously concluded that there was no merit in

petitioner’s claims and that the same were untenable. On

February 20, 1939, about three months after the commence-

ment of this action, the United States intervened therein and

took a position on behalf of petitioner or in accord with his

PPE PM SEITE S 9 fe

—-2—

claims. Thereafter, pursuant to a pre-trial conference, the

United States filed a brief in support of the admissibility

upon the trial of the case of evidence as to the alleged

mental incompetency of Jackson Barnett on Mareh 5, 1912

the date of the execution of the oil and gas lease involved

herein. Thereafter, the District Court advised the parties

that upon the trial of the case it would hold such evidence

inadmissible. Thereafter, on June 26, 1942, the United States

moved for, and was granted, leave to withdraw its complaint

in intervention, and thereby abandoned petitioner. (R. 614

616) Subsequently, the District Court, and later the Circuit

Court of Appeals, held petitioner’s claims were without

merit and untenable. Apparently, petitioner’s strategy is

that constant and repeated reiteration of his claims might

somehow, somewhere, or at some time eventuate in their

adoption.

Petitioner seems unable to resist making inaccurate

statements of fact or qualifying same to fit the law, and vice

versa, but, in spite of his indulgence in this field, he winds

up with misfits. Some outstanding examples of petitioner's

handiwork with the factual matters herein are as follows:

1, Petitioner repeatedly asserts that it is admitted that

on March 5, 1912, the date of the execution of the oil and

gas lease involved herein, Jackson Barnett was mentally in-

competent. This is inaccurate. On the contrary, respondents,

and each of them, have at all times maintained that Jack-

son Barnett on said date was mentally competent. More-

over, the mental competency of Jackson Barnett on said

date was one of the pivotal issues of fact involved in the

action or actions in which the judgments or decrees which

are attacked by petitioner were made and entered. (R. 72,

131, 169, 208, 352, 366, 403, 422, 441, 506)

2, Petitioiner repeatedly asserts that it is admitted that

the aforesaid judgments or decrees were void and invalid.

This is inaccurate. On the contrary, respondents have at all

times mentioned, and still maintain, that said judgments or

decrees were and are good and valid. (R. 351, 354, 363-365,

398, 433-435, 443, 444, 500, 509-510)

3. Petitioner repeatedly asserts that it is admitted that

the oil and gas lease involved herein was and is void or in-

valid. This is untrue. On the contrary, respondents have at

all times maintained, and still maintain, that said oil and

gas lease was and is good and valid. (R. 147, 148, 169, 170,

908, 209, 351, 366, 367)

4. Petitioner repeatedly asserts that it is admitted that

the aforesaid judgments or decrees were and are merely and

solely consent decrees or judgments, entered merely and

solely pro forma upon the compromise agreement involved

herein and without any independent judicial inquiry and

determination on the part of the District Court which made

and entered the same. This is inaccurate. On the contrary,

respondents have at all times maintained, and still maintain,

that, while said judgments or decrees were initiated by said

compromise agreement, the same were not made and entered

until the District Court had made all necessary independ-

ent judicial inquiry and determination to render and con-

stitute said judgments or decrees res adjudicata of both the

issues of law and of fact involved in the case or cases in

which the same were made and entered. (R. 353, 354, 425,

426, 531,533) Moreover, both the District Court, in its find-

ings of fact herein, as we will hereafter show, and the Cir-

cuit Court of Appeals, in its opinion, found and held that

said judgments or decrees were not made and entered until

the District Court had made all necessary independent ju-

—4—

dicial inquiry and determination to render and constitute _

said Judgments or decrees res adjudicata of both the issues

of law and of fact involved in the case or cases in whid

the same were made and entered. (R. 619, 826-827) Here.

after we will show that, in the final analysis, petitioner's

present petition is bottomed upon his inaccurate and wholly

insupportable assertions with respect to the instant faets,

5. Petitioner repeatedly asserts that the Circuit Court

of Appeals, in its opinion herein, conceded that Jackson

Barnett was mentally incompetent on March 5, 1912, and

that the oil and gas lease involved herein was and is void

Such assertions constitute only partial truths. On the con-

trary, the only concessions made by the Circuit Court of

Appeals were ‘‘for the purpose of this opinion.’’ (R. $27)

In other words, the Circuit Court of Appeals was merely

saying that even if it be assumed that such mental incompe-

tency existed, or that if it be assumed that said lease was

void, the aforesaid judgments or decrees were nevertheless

res adjudwata of all the issues, both of fact and of law, ix-

volved in the case or cases in which the same were made

and entered, and that none of the issues of fact or of law

involved in said case or cases could be relitigated for the

purpose of establishing the invalidity of said judgments or

decrees, or that any of said issues, either of law or of fact,

were erroneously decided or adjudicated by said judgments

or decrees.

The Cireuit Court of Appeals, in its opinion herein, has

made a brief, clear and forthright statement of the facts

necessary to a consideration of petitioner’s present petition,

and we do not deem it necessary to repeat such facts herein.

However, we will hereafter make a more detailed statement

than was made by the Cireuit Court of Appeals of certain

facts which render petitioner’s present petition absolutely

without merit and untenable. Aside from the many inaccu-

rate and unfounded statements of fact made by petitioner,

to some of which we have heretofore adverted, the only

variations in petitioner’s statement of facts and the state-

ment of facts of the Cireuit Court of Appeals consist mere-

ly of immaterial factual details and rhetorical color and

amplification.

In so far as this action is concerned, petitioner is in a

sense a mere interloper, because he is merely prosecuting

this action as administrator of the estate of Jackson Bar-

nett, the full-blood Creek Indian involved herein, and be-

cause the subject-matter of this action, being restricted In-

dian property, is not property subject to administration by

any probate court of Oklahoma. Petitioner has no duty with

respect to such property, and his interest is not hard to see.

Such interest is not wholly charitable. The proper parties

to maintain this action are the United States or the heirs

of Jackson Barnett. See Barnard vy. Bilby, et al., 68 OklL. 63,

171 Pac. 444; Bilby v. Noble, 106 Okl. 302, 234 Pac. 198; and

March, et al., v. Peter, et al., 179 Oki. 207, 64 P. (2d) 912.

In the District Court, petitioner undertook to attack the

judgments or decrees which are involved herein, and which

were made and entered more than nine years prior to the

commencement of his action, upon the following grounds :

1. That said judgments or decrees were procured by

fraud,

2. That said judgments or decrees were and are void

because the same were merely and solely entered pro forma

upon the compromise agreement involved herein and with-

out any independent judicial inquiry and determination on

a we

3 3

the part of the District Court which made and entered the

same; and

3. That, because said judgments or decrees were and

are void, for and upon the two aforesaid reasons and

grounds, the same were not and are not res adjudicata of

the alleged mental incompetency of Jackson Barnett on

March 5, 1912, or of the alleged invalidity of the oil and gas

lease involved herein, and, consequently, that he is not pre.

cluded from now litigating, and is free to now litigate, the

question of the fact of such alleged incompetency and of the

numerous questions of both fact and law necessary to a de.

termination of the alleged invalidity of said lease.

It is noteworthy, that in the District Court petitioner

did not initiate the question of any insufficiency of the court

proceedings immediately preceding the making and enter.

ing of the judgments or decrees under attack. (R. 6-39) It

was the United States, in its petition of intervention, that

first interposed this particular ground of attack. (R. 114

115) And we have heretofore seen that the United States,

evidently realizing there existed no ground or grounds justi-

fying the vacation of said judgments or decrees, withdrew

from the case. (R. 614-616)

The District Court found herein, as a matter of fact,

that the judgments or decrees attacked by petitioner were

not ‘‘obtained as the result of any fraud, actual or legal,”

and that said judgments or decrees and the compromise

agreement and its approvals, which preceded the making

and entering of said judgments or decrees, were ‘‘free of

fraud and were made and entered into in good faith,” and

that there was no evidence which indicated or tended to

prove that any person “had performed or done any act or

thing that would or should have caused the court to refrain

ih ec

-—T=_—

from entering the judgment it did enter.’’ (R. 620) In the

Circuit Court of Appeals petitioner did not rely upon any

daim of fraud, and does not now present any such claim.

Consequently, the first of petitioner’s aforesaid grounds of

attack is out of this case. But notwithstanding this, peti-

tioner, by mere statement and inuendo, attempts to impute

corrupt intent and purpose to every single important trans-

action, both private and governmental, involved in this case,

including, among other things, the approval by the Secre-

tary of the Interior of the oil and gas lease involved herein,

the conduct of the United States and its officials in the case

or eases in which the judgments or decrees under attack

were made and entered, the making and entering into, and

approval by the Attorney General of the United States and

the Secretary of the Interior of the compromise agreement

involved herein, and the withdrawal of the United States

as a party to this action. According to petitioner, every-

thing from the beginning to now which stands in his way

was either fraudulent or erroneous. However, it is impos-

sible for us to believe that there can be such an unbroken

chain of fraud or error.

A mere casual glance at the third of petitioner’s afore-

said grounds of attack discloses that the same is wholly

dependent upon the tenability of the second of his aforesaid

grounds of attack. And petitioner admits herein that unless

he can maintain and sustain the second of said grounds of

attack, his third ground of attack is untenable, (Petition-

er’s brief herein, p. 35.) Consequently, in the final analysis,

the question is whether there is any merit in the second of

petitioner’s aforesaid grounds of attack. The Cireuit Court

of Appeals held there was not, and we think it was undoubt-

edly right.

The gist of the opinion of the Cireuit Court of Appeal

is embraced in the last five paragraphs thereof, which ar

as follows:

** Appellant recognizes that to be successful he must

get around the judgment in Consolidated No. 216 Equ-

ty quieting appellees’ title to the oil and gas lease, This

he seeks to do on the ground that the judgment is void

because it cunstituted a consent decree. It is argued

that neither a legal guardian, a guardian ad litem, nor

a next friend of an incompetent person can consent to

a compromise judgment, and that such a judgment is

absolutely void. On the other hand, appellees urge with

considerable force that appellant is without authority

to maintain this action because the funds in question

are restricted and as such do not constitute assets sub-

ject to administration by an administrator in a state

court of competent jurisdiction. This contention is not

without merit. Numerous other questions are raised,

and a great number of authorities are cited in support

thereof.

‘*In the view we take of the matter, it is not neces-

sary to the determination of the controversy to consider

or pass upon these many issues. It is our opinion that

the decree of the court was not a consent decree; that it

was a judicial determination of the issues involved in

the case in which it was entered, and is a valid and bind-

ing decree, and constitutes an effective bar to the prose-

eution of this case.

‘This is not a case in which the parties agreed as

to the judgment which should be entered, submitted it

to the court, and had the court pro forma enter the

judgment upon which they had agreed, without an in-

dependent judicial inquiry and determination of the

issues involved in the case. The order of June 13 re-

cites that the compromise agreement was submitted to

the court for its inspection and that having examined

the same, as well as the petition of the guardian ad litem

‘and being otherwise sufficiently advised,’ the court ad-

judged and decreed that it be approved. The compro-

mise settlement contained not only the agreement of

the parties but also the facts in the case, together with

the questions of law. It follows, therefore, that when

the court made its examination of the issues it had be-

fore it all of the facts and questions of law set out in

the agreement. In addition to this, the court informed

itself outside of the facts set out in the written stipula-

tion, and from all this determined the nature of the

judgment which should be entered. The testimony of

John M. Goldsberry and James B. Diggs in this case

establishes that matters outside of the settlement agree-

ment were considered by the trial court in reaching its

judgment quieting the title.

‘“‘It may be conceded for the purpose of this opin-

ion that Jackson Barnett was mentally incompetent and

could therefore not execute a valid oil and gas lease.

It may also, for the same purpose, be conceded that the

court erred in Consolidated Equity No. 216 in conclud-

ing that the ratification of the lease by the representa-

tives of Barnett and its approval by the Attorney Gen-

eral and the Secretary of the Interior gave it validity.

The fact, however, remains that the court did conclude

that all these things that were done made the lease a

valid and subsisting oil and gas lease. After a consid-

eration of all these matters, the court entered judgment

quieting appellees’ title to the lease. The court had ju-

risdiction of the subject-matter and of the parties to

the controversy. Jurisdiction of the subject-matter in-

cludes power to determine with binding effect every

justiciable issue involved. Such jurisdiction is not lim-

ited to deciding issues correctly. Swift & Co. v. United

States, 276 U. 8. 311, 48 S. Ct. 311, 72 L. ed. 587. An

erroneous decision is just as binding as a correct one if

no appeal is taken therefrom.

‘‘Many other reasons are given by appellant why

nothing that was done prior to the judgment in Consoli-

-—10—

dated Equity No. 216, or why nothing done in that case,

could give validity to the lease which it is asserted was

void ab initio. It would serve no useful purpose to en-

gage in a detailed discussion of these various points,

because invariably we come back to the fact that the

trial court in Consolidated Equity No. 216 concluded

and decided that the lease was valid and quieted ap.

pellees’ title thereto. This judgment became final and

is binding upon all parties interested in this lease,”

(R. 826-827)

Obviously, what the Circuit Court of Appeals meant by

‘‘consent decree’’ is a decree which is merely made and

entered pro forma upon a compromise agreement or stipu-

lation for decree, without any independent judicial inquiry

and determination on the part of the court making and en-

tering the same, and not a decree which, while initiated by

an agreement or stipulation, was made and entered, not

merely and solely pro forma upon the agreement or stipv-

lation, but was made and entered after and pursuant to

an independent judicial inquiry and determination on the

part of the court making and entering the same with respect

to the wisdom and propriety thereof. In 34 C. J., p. 130,

Sec. 331, the author says:

‘“* * * Where, however, the adjudication is one

which is actually made by the court, after due consid-

eration and investigation, although the parties super-

add their consent thereto, it is more than a mere con-

tract im pais, and is not a judgment by consent.’’

The burden was upon petitioner to prove his claim that

the judgments or decrees which he attacks were merely and —

solely entered pro forma upon the compromise agreement

involved herein, without any independent judicial inquiry

and determination on the part of the District Court. Hov-

ST Sa

ever, petitioner only produced one witness in an effort to

make such proof, and that witness, who was Mr. John M.

Goldsberry, the United States District Attorney at the time

of the making and entering of said judgments or decrees,

wholly fails to support petitioner. In fact, Mr. Goldsberry

destroyed the possibility of any such proof. Notwithstand-

ing the failure of petitioner to sustain his aforesaid burden,

respondents produced evidence which definitely and posi-

tively controverts petitioner’s claim.

Naturally, the evidence bearing upon petitioner’s in-

stant claim is not as full, complete and definite as we would

wish, because the witnesses were undertaking to testify

about something that occurred or did not occur approxi-

mately thirteen years prior to the giving of their testimony.

But whatever may be said about the evidence with respect

to this matter, it cannot possibly be said that there is any

evidence that the aforesaid judgments or decrees were mere-

ly and solely entered pro forma upon the compromise agree-

ment involved herein and without any independent judicial

inquiry and determination on the part of the District Court

which made and entered the same.

Mr. Goldsberry testified that he recollected being in

court at the time of the making and entering of the judg-

ment or decree of July 11, 1929, but his recollection of what

took place was hazy; that he thought Judge Diggs, attorney

for the Gypsy Oil Company, Mr. Schwabe, one of the at-

torneys for the next friend and also for the guardian ad

litem of Jackson Barnett, and Mr. Wills, who represented

Mid-Continent Petroleum Corporation, were present; that

he didn’t recall whether Mr. Ramsey, who represented

Cushing Gasoline Company, was present; that it was his

recollection that no witnesses were sworn to testify; that

—12—

he could not definitely answer that no evidence of any kind

or in any form was presented to the court; that he did not

recollect what documentary evidence, if any, was submitted

to the court; that he did recall that Judge Kennamer “‘had

some conversation or some inquiry with Judge Stuart, who

was the guardian ad litem, and naturally I suppose with the

other attorneys who were present’’; that he also recollect.

ed that the court gave him some instructions with reference

to the disposition of the consideration for the settlement;

and that all he meant to testify to was that according to

his recollection no witness was sworn and examined by the

lawyers, (R. 672-677)

Mr. James B. Diggs, who was attorney for the Gypsy

Oil Company, testified, as a witness for the respondents,

that the judgment or decree of July 11, 1929, was entered

in open court; that he was present, and that, according to

his recollection, Mr. George S. Ramsey, attorney for the

Cushing Gasoline Company, J udge Stuart, the guardian ad

litem, either Mr. Denton or Mr. Wills, attorneys for the

Mid-Continent Petroleum Corporation, Mr. George Schwabe,

Mr. Rayburn Foster and Mr. Coakley, attorneys for the next

friend and the guardian ad litem, were also present; that

the compromise agreement, or one of the quadruplicate

copies thereof, the letter of approval of Mr. Dixon, Acting

Secretary of the Interior, the approval of the Department

of Justice, the appointments of Mr. Hall and Mr. McCallon,

as guardians of Jackson Barnett, an incompetent, by the

County Courts of Creek and Okmulgee Counties, Oklahoma,

respectively, were presented to the court; that Mr. Lytle,

attorney for H. U. Bartlett, and either Mr. Goldsberry, the

United States District Attorney, or Mr. Stivers, his assist-

ant, were also present; that Judge Stuart presented the

motion for compromise; that when J udge Stuart presented

same, the court, in substance, remarked: ‘‘Should this be

approved, or do you agree to it’’; that Judge Stuart replied,

‘under all the circumstances I think that the agreement

should be approved’’; and that the court inquired of the

other attorneys as to whether they thought the settlement

should be approved, and that they all indicated they thought

so. (R. 677-684)

The first of the judgments or decrees attacked by peti-

tioner is dated June 13, 1929, and appears at page 102 of

the record. It is simply entitled ‘‘Order,’’ and not Consent

or Compromise Order, Judgment or Decree. It recites that

the cause came on for hearing upon a petition for approval

of the compromise agreement, which petition appears at

pages 100-102 of the record. It recites the statements of

said petition, that the compromise agreement was submitted

to the court for its inspection, that the court had examined

the same and had examined the petition for the approval

thereof, and that the court was ‘‘otherwise sufficiently ad-

vised.’? And in said order it was ‘‘ordered, adjudged and

decreed that said compromise agreement be, and the same

is hereby approved.’’ Said order also ordered that the con-

sideration for said compromise agreement was not to be

payable until it was approved by the Secretary of the In-

terior and the Department of Justice of the United States.

Said order concludes with these words : ‘‘ Done in open court,

this 13th day of June, 1929.’’ And, in addition to said order,

the District Court, on said 13th day of June, 1929, endorsed

his approval upon said compromise agreement. (R. 100-

104, 107, 108, and 109)

The second of the judgments or decrees attacked by

petitioner, being the only other judgment or decree attacked

by him, is dated July 11, 1929, and appears at page 105 of

— 14—

the record. It is simply entitled ‘‘Final Decree,’’ and not

Consent or Compromise Order, Judgment or Decree, |i

recites that the cause came on for hearing upon a regular

day of a term of the court; that all of the parties in said

cause, including the United States of America, appeared by

their counsel; that said compromise agreement had been ful.

ly and completely executed, authorized, ratified, confirmed

and approved; and that it appeared to the court that it was

to the best interest of Jackson Barnett to enter into said

compromise agreement. Accordingly, in said final decree,

the court again approved and confirmed said compromise

agreement, and, pursuant thereto, ordered, adjudged and

decreed that petitioner’s bill in Cause No. 216 Equity, and

the guardian ad litem’s counterclaim in Cause No. 260 Equi-

ty be ‘‘dismissed with prejudice,’’ and that the titles of the

respective respondents in and to the oil and gas lease in-

volved herein be quieted. (R. 105-107)

The District Court, in its seventh finding of fact, found

as follows:

‘‘Said compromise agreement on the 13th day of

June, 1929, was submitted to this court, then presided

over by the Honorable Franxury E,. Kennamer, as

judge thereof, for approval by the guardian ad litem

with the statement that the compromise would be to

the best interest of Jackson Barnett and with the ree.

ommendation that it be approved and, after hearing

evidence therein in open court as to whether the com-

promise agreement was to the best interest of Jackson

Barnett and finding that it would be, the same was ap-

proved in open court by the judge thereof, which ap-

proval was conditioned on the approval of the compro-

mise agreement by the Secretary of the Interior and

the Attorney General of the United States and on the

payment of $35,000.00 to be paid in the manner pre-

scribed in the compromise agreement and by the order

of the court of June 13, 1929. On July 11, 1929, the

cause came on further to be heard in open court for

final judgment and decree, and all parties being present

by their attorneys, the compromise agreement and said

cause were submitted to the court for approval and

fal decree, and it appearing that said compromise

agreement had been approved by the Attorney General

of the United States and the Secretary of the Interior

of the United States, and the court finding from evi-

dence in open court that such compromise agreement

and final decree would be to the best interest of Jackson

Barnett, and it further appearing that the considera-

tion for said agreement had been paid in the manner

agreed upon and as directed by the court, the court

finally approved said compromise agreement and en-

tered the final decree in such Consolidated Cause No.

216 Equity bearing date of July 11, 1929, quieting the

title to these answering defendants or their predeces-

sors in title to the separate parcels of the leasehold es-

tate of which they were owners by deeds of assignment

and the judgment was duly entered of record.’’ (R. 619)

(Italics ours.)

Thus, we have both the District Court and the Cireuit

Court of Appeals finding and holding that the judgments

or decrees attacked by petitioner were not merely and sole-

ly entered pro forma upon the compromise agreement in-

volved herein and without any independent judicial inquiry

and determination on the part of the District Court which

made and entered the same. This dual finding and holding

sweeps out from under petitioner the whole and entire fac-

tual foundation upon which, in the final analysis, is predi-

cated his petition for certiorari.

It is thoroughly established that this court will accept

concurrent findings of a District Court and the Circuit Court

of Appeals as establishing facts found, and will not grant

ceed

ee

a writ of certiorari merely to review the evidence or jp.

ferences drawn from it. See Alabama Power Co. v. Ickes,

302 U.S. 464, 82 L. ed. 374; United States v. O’ Donnell, et

al., 303 U. 8. 501, 82 L. ed. 980; and General Talking Pic.

tures Corp. v. Western Electric Co., Inc., et al., 304 U.§,

175, 82 L. ed. 1273. The second and third paragraphs of

the syllabus to the last of said cases are as follows:

‘*The Supreme Court of the United States will not

grant a writ of certiorari merely to review the evidence

or inferences drawn from it.

**Concurrent findings of both courts below will not

be disturbed by the Supreme Court unless plainly with-

out support.’’

It might not be amiss to call the court’s attention to

the following evidence appearing in the record:

Respondents’ Exhibit 10 was a letter dated June 17,

1929, from A. J. McMillan, Acting Superintendent of the

Five Civilized Tribes, to the Commissioner of Indian Af-

fairs, transmitting the compromise agreement involved here-

in for consideration for approval. In said letter the ap-

proval of said compromise agreement was recommended.

Said letter contains this statement: ‘*This office has at all

times been of the opinion that the lease referred to is, in

all respects, a valid lease, and we understand that is the

position which your office has taken in this matter.” (R.

817-818)

Respondents’ Exhibit 2 was a letter dated June 2%,

1929, from Jos. M. Dixon, First Assistant Secretary of the

Interior, transmitting to the Attorney General of the United

States the aforesaid compromise agreement for considera-

tion for approval. In said letter it was stated:

‘‘This Department believes that the best interests

of Jackson Barnett will be served by the approval of

the agreement. However, in view of previous corre-

spondence with your department relative to the case

and the matters involved, and of the intervention in

the case by the United States in behalf of Jackson Bar-

nett, and of the terms of the compromise agreement,

this Department, before acting in the matter of the ap-

proval of said compromise agreement, will be pleased

to have your advice as to whether you have any objec-

tion to the approval of the compromise agreement. If,

in your opinion, it is to the best interests of Jackson

Barnett and the others concerned that the compromise

agreement and settlement be approved, this Depart-

ment, upon your advice to that effect and the return

of the inclosed papers to this Department, will endorse

its formal approval upon the compromise agreement.’’

(R. 790-791)

Respondents’ Exhibit 3 was a letter, dated June 27,

1929, from William D. Mitchell, Attorney General of the

United States, to Ray Lyman Wilbur, Secretary of the In-

terior, approving the aforesaid compromise agreement. In

said letter it was stated:

‘“‘The compromise agreement in settlement of the

case-made and entered into by and between the parties

plaintiff and parties defendant, and referred to in your

letter, has been approved. This accords with the views

expressed in your letter, This settlement has been given

consideration by this Department, and the opinion has

been reached that its approval is for the best interest

of Jackson Barnett and the parties concerned.’’ (R.

792)

Respondents’ Exhibit 11 consists of certain excerpts

from hearings before a sub-committee of the Committee on

Indian Affairs, United States Senate, Seventieth Congress,

Second Session, pursuant to S. Rep. 79. These excerpts dis-

5 tian

close that Mr. Pierce Butler, Jr., a Special Assistant to the

Attorney General, had on March 2, 1929, made a report of

his findings of fact and conclusions of law, together with

his recommendations, in connection with various matters

involving Jackson Barnett and his properties, and that on

March 4, 1929, Mr. Jno. G. Sargent, the then Attorney Gen-

eral, approved said findings of fact, conclusions of law and

recommendations. The following are parts of three ex

cerpts from Mr. Butlers’ report:

**It was under this section that Barnett lands were

leased and his royalties accumulated. The proper con-

struction of the act is important. Authority to make

the Barnett donations was claimed by the Secretary un-

der this act. Officers of the Interior Department in

charge of Indian Affairs thought that a decision against

the Seeretary’s authority to approve an incompetent’s

disposal of his royalties would establish lack of author.

ity to approve an incompetent’s oil lease. And prompt-

ly after the guardian’s appointment was held void a

suit was brought in United States Distriet Court, North-

ern District of Oklahoma, by a_ self-appointed next

friend to cancel the Barnett lease upon the claim that

Barnett being incompetent and the appointment of his

guardian void, there could be no valid approval of his

lease. Many leases might be so attacked. If such leases

may be set aside upon proof of the incompetence of the

Indian at the date of the lease a vast field of litigation

will be opened. Such cases would afford possibilities of

great gain and Indians’ rights and property of enor-

mous value would depend on the testimony of ignorant

and venal persons concerning an Indian’s competency

_at some past time.

‘The lease of Barnett was approved by the Seere-

tary and therefore valid whether Barnett was compe-

tent or incompetent.

ae -,

“‘T advise that:

‘*7. The oil lease of Barnett’s allotment is valid.’’

(R. 819-821)

Respondents’ Exhibit 9 is the order of the County Court

of Creek County, Oklahoma, appointing C. B. McCallon as

guardian of the estate of Jackson Barnett. (R. 813-816) The

letters of guardianship which were issued pursuant to said

order appear at pages 385-386 of the record. Respondents’

Exhibit 6 is the petition of C. B. MeCallon, as guardian of

the estate of Jackson Barnett, to the County Court of Creek

County, Oklahoma, for authority to enter into the compro-

mise agreement involved herein, and the order of that court

granting such authority. (R. 796-803) Respondents’ Exhibit

8 is the order of the County Court of Okmulgee County,

Oklahoma, appointing George Riley Hall guardian of the

estate of Jackson Barnett. (R. 810-813) The letters of

guardianship which were issued pursuant to said order ap-

pear at pages 384-385 of the record. Respondents’ Exhibit

7 is the petition of George Riley Hall, as guardian of the

estate of Jackson Barnett, to the County Court of Okmul-

gee County, Oklahoma, for authority to enter into said com-

promise agreement, and the order of that court granting

such authority. (R. 805-809)

It is quite apparent that petitioner’s basic reliance is

upon those cases which hold that an infant or mentally in-

competent person is not bound by a judgment or decree

rendered against him upon the mere consent or stipulation

of his parent, next friend, guardian, or guardian ad litem,

and without the judicial sanction of the court. However, the

most that such cases hold is that a court cannot enter a

valid judgment or decree against a minor or a mentally in-

competent person merely upon the consent or stipulation of

he? tate Rae

—20—

the minor’s or the incompetent person’s parent, next friend,

guardian, or guardian ad litem, and it must in some way

ascertain and conclude for itself that the judgment or de.

cree is for the best interest of the minor or mentally jn.

competent person. None of said cases prescribe any exa¢!

or definite procedure by which the court must arrive at such

ascertainment and conclusion, or hold that there must bea

trial of the case or that witnesses must be sworn and their

testimony given. All that is required is that the court, for

itself, determine whether a judgment agreed to is reason.

able and proper and for the best interest of the minor or

mentally incompetent person; and this, according to the evi:

dence of both petitioner and respondents, the District Court

herein did before making and entering the judgments or

decrees under attack. Mereover, under the evidence before

the District Court, that court most certainly would not have

been justified in concluding that any particular prerequisite

to the rendition of said judgments or decrees was omitted,

If it were a condition precedent to the entry of a judg.

ment for or against a minor or mentally incompetent per:

son pursuant to a compromise agreement, that the court

have witnesses sworn, their testimony presented, and de-

termine the merits of the issues involved, as upon an ordi-

nary trial, the same would render settlement by agreement

of litigation to which such persons were parties practicaily

impossible. Becanse, if the court, perchance, were of the

opinion that the minor or mentally incompetent ‘person

should prevail, it could not reasonably and in good conscience

approve of any judgment to the contrary, and, if, per-

chance, it were of the opposite opinion, good morals would

preclude it from being a party to paying a consideration in

settlement of an unfounded action. As we have hereinbe-

fore stated, none of the authorities support the assertion or

LE Ag eeS

tain that petitioner’s contention for the application of any

such condition is quite unreasonable, if not ridiculous.

In the case of Thompson v. Maxwell Land Grant & R.

Co., 168 U. 8. 451, 42 L. ed. 539, decided in 1897 and which

has been since said time, and still is, the leading ease on

the subject involved, this court said:

“That infants are bound by a consent decree is af-

firmed by the authorities, and this notwithstanding that

it does not appear that a prior inquiry was made by the

| court as to whether it was for their benefit. In 1 Dan.

Ch. Pl. & Pr. 163, it is said:

‘Although the court does not usually, where in-

fants are concerned, make a decree by consent,

without an inquiry whether it is for their benefit,

yet when once a decree has been pronounced with-

out that previous step, it is considered as of the

same authority as if such an inquiry had been di-

rected, and a certificate thereupon made that it

would be for their benefit; and in the same manner

an order for maintenance, though usually made aft-°

er an inquiry, if made without, would be eq@ally ad

binding.’ (In support of these propositions many

authorities are cited in a note.) ‘An infant defend-

| ant is as much bound by a decree in equity as a

| person of full age; therefore, if there be an abso-

| lute decree made against a defendant who is under

| age, he will not be permitted to dispute it, unless

upon the same grounds as an adult might have dis-

puted it; such as fraud, collusion, or error.’

| “In Walsh vy. Walsh, 116 Mass. 377 (17 Am. Rep.

162), a decree had been entered as follows: ‘And the

plaintiff and the defendants, * * * Thomas Keyes, * Rar

| and also in his capacity of guardian ad litem of Bridget

Walsh and William Walsh, consenting to the following

decree; and this court being satisfied upon the repre-

claim of any such condition precedent, and respondents main-

|

|

|

sentations of counsel that the decree is fit and proper

to be made as against the said Bridget and William; it

is thereupon ordered and adjudged and decreed,’ ete,

On a bill of review filed by the minors this decree was

challenged, among other reasons, on the ground that it

appeared to have been made by consent of their guard.

ian ad litem and upon the representations of counsel

without proof. The court decided against the conten.

tion, and speaking in reference thereto, through Mr.

Chief Justice Gray, said:

‘An infant is ordinarily bound by agts done in

good faith by his solicitor or counsel in the course

of the suit, to the same extent as a person of full

age. Tillotson v. Hargrave, 3 Madd. 494; Levy vy,

Levy, Id. 245. And a compromise, appearing to

the court to be for the benefit of an infant, will be

confirmed without a reference to a master ; and, if

sanctioned by the court, cannot be afterwards set

aside except for fraud. Lippiat v. Holley, 1 Beay,

423; Brooks v. Lord Mostyn, 33 Beav. 457, and 2

De G. J. & S. 373.

‘If the court does pronounce a decree against

an infant by consent, and without inquiry whether

it will be for his benefit, he is as much bound by

the decree as if there had been a reference to a

master and a report by him that it was for the

benefit of the infant. Wall y. Bushby, 1 Bro. Ch.

484; 1 Dan. Ch. Pl. & Pr. 164. The case falls with-

in the general rule, that a decree made by consent

of counsel, without fraud or collusion, cannot be

set aside by rehearing, appeal, or review. Webb v.

Webb, 3 Swanst. 658: Harrison v. Rumsey, 2 Ves.

Sr. 488; Bradish vy. Gee, 1 Ambl. 229; s. ¢., 1 Ken-

yon K. B. 73; Downing vy. Cage, 1 Eq. Cas. Abr.

165; Toder vy. Sansam, 1 Bro. P. C. 468; French v.

Shotwell, 5 Johns. Ch. 555.’

‘Ordinarily, indeed, a court before entering a con-

Ub te san oie aera

sent decree will inquire whether the terms of it are

for the interest of the infants. It ought in all such cases

to make the inquiry, and because it is its duty so to do

it will be presumed, in the absence of any showing to

the contrary, that it has performed its duty. In this

case, while the decree fails to recite the making of such

an inquiry, there is nothing to indicate that it was not

made; the circumstances tend strongly to show that it

was in fact made, and the finding is that the conclusion

reached by the chancellor as to the advisabilitiy of the

settlement was a sound exercise of his discretion. It is

true the findings show that this decree of September,

1866, was not made by the personal procurement,

knowledge, or consent of said Scheurick or Guadalupe

Bent, and the fact of the entry thereof was unknown to

them for several years thereafter. They also show that

there is no pleading, order, or proceeding of record dis-

closing whether or not any inquiry was made by the

court; but it does appear that the parties plaintiff, in-

cluding the infants, were represented by counsel; that

the guardiain ad litem as well as the other adult plain-

tiffs fully understood the settlement and assented to it;

and it is not strange that, having executed conveyances,

they left to counsel such further action as should be

deemed necessary to perfect the transfer of title. Fur-

ther, in April prior to this decree, not only was the suit

revived in the name of the infant heirs of Charles Bent,

but on motion of the solicitors for plaintiffs their moth-

er was appointed guardian ad litem and commissioner

in chancery, with full power to execute deeds and ear-

ry into execution all sales or transfers of their interest

in the real estate described to the defendant Maxwell.

The court was therefore early advised of the fact of a

proposed settlement. The consent decree shows fully

the terms of the settlement, and it certainly is not strain-

ing the presumption in favor of judicial action to as-

sume that the court would not have permitted the en-

try of this decree, providing for a settlement whose

terms were thus disclosed, without being satisfied that

such settlement was for the interest of the minors who

were under its charge.

* * * * * * * *

‘“‘It would be strange, indeed, if, when those av.

thorized to represent minors, acting in good faith, make

a settlement of claims in their behalf, and such settle.

ment is submitted to the proper tribunal, and after

examination by that tribunal is found to be advanta-

geous to the minors and approved by a decree entered

of record, such settlement and decree can thereafter be

set aside and held for naught on the ground that sub.

sequent disclosures and changed conditions make it ob-

vious that the settlement was not in fact for the in.

terests of the minors, and that it would have been bet.

ter for them to have retained rather than compromised

their claims. If such a rule ever comes to be recognized

it will work injury rather than benefit to the interests

of minors, for no one will make any settlement of such

claims for fear that it may thereafter be repudiated.

The best interests of minors require that things that

are done in their behalf, honestly, fairly, upon proper

investigation, and with the approval of the appropriate

tribunal, shall be held as binding upon them as similar

actions taken by adults.’’

Almost no end of cases to the same effect could be cited.

A consent decree is a judicial act as held in Pope v.

United States, No. 26, decided November 6, 1944. Therein

this court said:

“It is a judicial function and an exercise of the

judicial power to render judgment on consent, A judg:

ment upon consent is ‘a judicial act.’ United States v.

Swift, 286 U. S. 106, 115; Swift v. United States, 2

U.S. 311; see also Pacific R. R. vy. Ketchum, 101 U.S.

289; United States v. Babbitt, 104 U. 8. 767; Nashville,

Chattanooga & St. Louis Ry. v. United States, 113 U.

—25—

S. 261; Thompson v. Mazwell Land Grant Co., 168 U.

§. 451. It is likewise a judicial act to give judgment on

a legal obligation which the court finds to be established

by stipulated facts; J. 1. Case Co. v. Labor Board, 321

U. S. 332, 333; Johnson vy. Yellow Cab Co., 321 U. S.

383, 388; Equitable Society v. Comm’r, 321 U. 5. 560,

561; or when the defendant is in default. Voorhees v.

Bank of the United Siates, 10 Pet. 449; Randolph v.

Barrett, 16 Pet. 138; Clements v. Berry, 11 How. 398;

Cooper v. Reynolds, 10 Wall. 308; Rio Grande Irriga-

tion Co. v. Gildersleeve, 174 U. 8. 603; Fidelity and De-

posit Co. v. United States, 187 U.S. 319; Christianson

v. King County, 239 U. 8. 356, 372. It is a familiar

practice and an exercise of judicial power for a court

upon default, by taking evidence when necessary or

by computation from facts of record, to fix the amount

which the plaintiff is lawfully entitled to recover and

to give judgment accordingly. Renner and Bussard v.

Marshall, 1 Wheat. 215; Aurora City v. West, 7 Wall.

82, 104; Clements v. Berry, supra; cf. Mayhew v.

Thatcher, 6 Wheat. 129. In all these cases the court de-

termines that the unchallenged facts shown of record

establish a legally binding obligation; it adjudicates the

plaintiff’s right of recovery and the extent of it, both

of which are essential elements of the judgment.”’

Even if the validity of the judgments or decrees under

attack depended upon the introduction of some evidence as

to the issues involved, the merits thereof, and as to whether

said judgments or decrees were in the best interests of

Jackson Barnett, such evidence can be found in the com-

promise agreement involved herein, which, according to

the record was introduced in evidence, and which contained

a recitation of all the matters involved in greater and more

accurate detail than could have been given by any sworn

Witness, or witnesses, and also in the statements which said

record discloses were made to the court by counsel immedi-

—26—

ately preceding the rendition of said judgments or decrees

(R. 772-789, 672-684, 619)

Finally, we would call attention to the fact that what.

ever may be said about a compromise decree against an in.

fant or mentally incompetent person when he is represent:

ed solely and exclusively by his parent, next friend, guard:

ian, or guardian ad litem, we are not confronted solely with

any such situation. Here we have a situation in which Jack.

son Barnett, in addition to being represented by a next

friend and a guardian ad litem, was represented, whether

wisely or not is immaterial, by the United States and by two

Oklahoma probate court guardians; and the United States,

by its Secretary of the Interior and its Attorney General

(R. 771-772), and said two probate court guardians, after

having been regularly authorized so to do by the respective

probate courts which appointed them (R. 786, 796-809), con-

sented and agreed to the judgments or decrees under attack,

And in this situation, the Distriet Court herein was not re.

quired to conduct any trial, hear any evidence, or even as-

certain and conclude, for itself, which, however, it did do,

that such judgments or decrees were for the best interests

of Jackson Barnett.

The reasoning of those eases which hold that it takes

more than the consent, agreement or stipulation of a parent,

next friend, guardian or guardian ad litem of a minor ora

person mentally incompetent to render a judgment or de-

cree res adjudicata against the minor or mentally incompe-

tent person is that such representatives are per se without

power or capacity to make any admission, waiver, prejudice,

representation or agreement whatsoever. However, it is well

established, by this and all other courts which have had any

occasion to consider the matter, that the United States, as

—27—

guardian of a restricted Indian, has the superior right and

power to commence, maintain and control litigation in con-

nection with the allotment of such Indian, and that it may

compromise and settle such litigation or dismiss the same,

even with prejudice, or refuse to appeal from any judgment

against it in such litigation, and that its action in these

respects cannot be objected to, interfered with, or cireum-

vented by such Indian, his next friend, his guardian, guard-

ian ad litem, or any other party or parties. Consequently,

the District Court, had it seen fit so to do, could have made

and entered the judgments or decrees under attack merely

and solely upon approval and execution of the compromise

agreement herein by the United States, acting by and through

its Secretary of the Interior and its Attorney General, and

without any judicial ascertainment or determination what-

soever.

In the ease of Conner, et al., v. Cornell, et al., (C. C. A.

8) 32 F. (2d) 581, the court said:

‘It is argued that Abbie Conner and Nettie Conner

were not parties to the action brought by the United

States in the federal court, and hence are not bound by

its action. This is unavailing, and, in referring to the

claim that the Indian wards had not been made parties

in Heckman v. United States, 224 U. S. 413, 444, 32

S. Ct. 424 (56 L. ed. 820), the Supreme Court said: ‘This

position is wholly untenable. There can be no more

complete representation than that on the part of the

United States in acting on behalf of these dependents

—whom Congress, with respect to the restricted lands,

has not yet released from tutelage. Its efficacy does not

depend upon the Indian’s acquiescence. Jt does not rest

upon convention, nor is it circumscribed by rules which

govern private relations. It is a representation which

traces its source to the plenary control of Congress in

legislating for the protection of the Indians under its

—2es—

care, and it recognizes no limitations that are incop.

sistent with the discharge of the national duty. Whe

the United States instituted this suit, it undertook tj

represent, and did represent, the Indian grantors whos

conveyances it sought to cancel. It was not necessary

to make these grantors parties, for the Government wa

in court on their behalf. Their presence as parties could

not add to, or detract from the effect of the proceeding;

to determine the violation of the restrictions and th

consequent invalidity of the conveyances. * * * And ii

could not, consistently with any principle, be tolerate;

that, after the United States on behalf of its wards hai

invoked the jurisdiction of its courts to cancel convey.

ances in violation of the restrictions prescribed by Con.

gress, these wards should themselves be permitted ti

relitigate the question’.’’ (Italics ours.)

In the case of Mars, et al., v. McDougal, et al., (0.0.4.

10) 40 F. (2d) 247, this court said:

‘‘Counsel for appellants contend that the decree in

cause No. 3191 is not res adjudicata for the reason that

the United States was without authority to bring an

action in behalf of Lusanna Brink and then dismiss i

with prejudice, without receiving some consideration

for such dismissal.

‘*TIt is well settled that the United States, as guard-

ian of its Indian wards, may maintain a suit in its name

to enforce restrictions upon the alienation of lands by §

such Indians and to set aside conveyances or contracts

by which such restrictions have been transgressed.

LaMotte vy. United States, 254 U. 8. 570, 41 S. Ct. 204, F

65 L. ed. 410; United States v. Noble, 237 U. 8. 74,35 |

S. Ct. 532, 59 L. ed. 844; Heckman v. United States, 224 |

U.S. 413, 32 S. Ct. 424, 56 L. ed. 820; Bowling d&: Miami

Inv. Co. v. United States, 233 U.S. 528, 34 S. Ct. 659,

58 L. ed. 1080,

‘*Since the United States, acting through its At:

ae Sa eee ee

torney General, has the power to maintain such a suit,

it would be a strange situation, indeed, if the Attorney

General could not dismiss such suit, with prejudice upon

discovery that it was groundless. We conclude that

power is vested in the Attorney General, as the head of

the department of justice, to initiate, control and dis-

miss such a suit. United States vy. San Jacinto Tin Co.,

125 U. S. 273, 281, 8 S. Ct. 850, 31 L. ed. 747; United

States v. Throckmorton, 98 U.S. 61, 70, 25 L. ed. 93;

United States v. Beebe, 127 U.S. 338, 342, 8S. Ct. 1083,

32 L. ed. 121.

‘© dismissal with prejudice is a decision on the

merits and is a bar to a further action, under the doc-

trine of res adjudicata. Conner v. Cornell, (C. C. A. 8)

32 F. (2d) 581; Ledbetter v. Wesley, (C. C. A. 8)

23 F, (2d) 81; Hickey v. Johnson, (C, C. A.) 9 F. (2d)

498.’’ (Italies ours.)

See, to the same effect, Vinson, et al., v. Graham, et al., (C.

C. A. 10) 44 F. (2d) 972; Pueblo of Picuris in State of New

Mewico v. Abeyta, et al., (C. C. A. 10) 50 F. (2d) 12; Harjo,

et al., v. Empire Gas & Fuel Co., (C. C. A. 8) 28 F. (2d) 596;

United States v. Dunn, et al., (C. C. A. 8) 288 Fed. 158;

and United States v. Candelaria, et al., 271 U.S. 482, 70 L.

ed. 1028.

With respect to the power of the District Court to make

and enter the judgments or decrees under attack upon the

consent of the above referred to two Oklahoma probate

court guardians, after they had been regularly authorized

so to do by the respective probate courts which appointed

them, we would eall the court’s attention to Verdine, et al.,

v. Cosden & Co., et al., 96 Okl. 52, 220 Pae. 329, in which the

court said:

‘‘We deem it unnecessary to go into the discus-

sion of the facts out of which this litigation grew or

ITI PTE Oe”

(CM A IES Tee

the assignments of error made by the plaintiffs in error,

for that the plaintiffs in error, with the approval of the

County Court having the jurisdiction of the settlement

of their estate and their guardians, joined by their

counsel, for a sum of money specified, have entered

into an agreement satisfactory to the respective par

ties. Thompson vy. Maxwell Land Grant Co., 168 U.S.

451,18 Sup. Ct. 121, 42 L. ed. 539; Gusdofer y. Grundy,

72 Miss. 312, 16 So. 432; Cannor y. Hemphill, 7 Tex

184. Without regard to the merits, we are of the opinion

that the settlement is to the best interest of the minors

and that the motion to affirm the judgment of the tria!

court should be sustained and the judgment of the trial

court should be affirmed.’’

See, to the same effect, Carter Oil Co. vy. Fleming, 117 Oki,

39, 245 Pace. 833; Harris y. Davis, et al., 170 Okl. 30, 38 P.

(2d) 562; and Derrisaw y. Schaffer, et al., (D.C., E. D. Okla.)

8 Fed. Supp. 876.

Respondents respectfully submit that the opinion of

the Cireuit Court of Appeals is not in conflict with the de.

cision of any other Cireuit Court of Appeals on the same

matter; or that said opinion decided any question of local

law in a way probably in conflict with any applicable local

decisions ; or decided any question of federal law which has

not been, but should be, settled by this court; or decided

any federal question in a way probably in conflict with ap-

plicable decisions of this court: or departed from the ac

cepted and usual course of judicial proceedings, or sane-

tioned any such departure by the Distriet Court; and re-

spondents further submit that no reason exists for the grant-

ee

ing of petitioner’s petition for a writ of certiorari, and that

such petition should be denied.

Ricuarp H. WILLs,

Counsel for Respondent, Mid-Continent

Petroleum Corporation;

VILLARD,MaRTIN,

Counsel for Respondent, Cushing Gaso-

line Company;

Harotp E. Rorscwacn,

Counsel for Respondents, F., A. Gillespie

& Sons Company and F. A, Gillespie;

James B. Dicas,

Russet G, Lowe,

James B. Diaas, JR.,

Counsel for Respondents, Gypsy Ou

Company and Gulf Oil Corporation,