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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34806415_2402%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondents in Opposition
- **Published:** January 1, 1945
- **Citation:** 323 U.S. 798

## Text

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,

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34806415_2402%3A2. Public record. Not legal advice.