Petition for a Writ of Certiorari — Parnacher v. Mount

INDEX

PAGE

a SUBJECT INDEX

» Petition for Writ of Certiorari 1

» Opinion Below ponies vats 2

x 3 ss 3

E Questions Presented 4-6

: Summary Statement of Matters Involved 6

4 Specifications of Error 21

a Reasons Relied Upon for Issuance of Writ _..._..._ 19

(9 Brief in Support of Petition for Writ of Certiorari_..._ 24

"Opinion of the Court Below 24

_ Jurisdiction 24

: Statement of the Case 25

e Specifications of Error a 27-28

4 First Proposition: The County Judge of Garvin

a County, Oklahoma, had no jurisdiction to approve

es the will after the question as to whether it should

; be approved had been presented to the County

Judge of Pontotoc County, Oklahoma, and he had

refused to approve it (Specifications 3,4,5) 29

Second Proposition: The Court of Appeals erred in

holding that the decision of the Supreme Court of

Oklahoma in the case of Parnacher et al. v.

Mount, 207 Okla. 275, 248 P.2d 1021, was res

_-judicata and conclusive on petitioners .as to the. -.

issue in this case as to whether the County Judge

of Garvin County, Oklahoma, had jurisdiction to

phate sR AG

ter LFS Ee

Nate ee Oe ea ae Oe Rong Ss Nae

- Be CS Bare es ae are Soe

wails:

INDEX CONTINUED PAGE

approve the will and as to whether the will is void

and ineffective as to restricted property (Srecifi-

cations 1, 2, 6) 37

Conclusion 48

AUTHORITIES

CAaSsEs:

Alabama Elec. Co-op. v. Alabama ower C>., 251

Ala. 190, 36 So.2d 523 34

Allen’s Will, In re, 44 Okla. 392, 144 Pac. 1053... 44

Angel v. Bullington, 330 U.S. 183 3, 20

Anglin v. Patterson, 121 Okla. 106, 248 Pac. 632 __30,

. 32, 44.

Armstrong v. Letty, 85 Okla. 205, 209 Pac. 168 __13,

16, 18, 37, 38, 39, 41, 42, 46°

Assessment of First National Bank of Chickasha, In

ve, 58 Okla. 508, 160 Pac. 469 42,

Assessment of First National Bank of Chickasha,In _

re, 93 Okla. 233, 320 Pac. 909, 57 A-L.R. 890 ______ 42-43

. Barrett’s Estate, In re, 181 Okla. 262, 72 P.2d 482 —.. - 39

_Battiest v. Wolf, 97 Okla. 212, 223 Pac. 661 44

Bertig v. Higgins, 89 Ark. 70, 115 S.W. 935 38

Bilby v. Noble, 106 Okla. 302, 234 Pac. 198 37

Board Com’rs Creek County v. Seber, 130 F.2d 663,

667, affirmed, Board Com’rs Creek County v.

Seber, 318 U.S. 705 38

Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281

US. 673 40

Brock v. Keifer, 59 Okla. 5, 157 Pac. 88 =.= =-—=s 44

Burgess v. Bosen, 31 F. Supp. 352 47

Clark v. Gray, 204 Okla. 221, 228 P.2d 654 39

Coats v. Riley, 154 Okla. 291, 7 P.2d 644 37, 44

Coppedge v. Clinton, 72 F.2d 531

wibihnn

INDEX CONTINUED PAGE

Courtney v. Daniel, 124 Okla. 46, 253 Pac. 990 ___.37, 44

Cowokochee v. Chapman, 90 Okla. 121, 215 Pac.

759 37...

Crawford v. LeFevre, 177 Okla. 508,61 P.2d 196... 44

Crayne v. Crayne, 54 Nev. 205, 13 P.2d 222, 84

ALR. 716 41

Darby-Lynde Co. v. Alexander (10th Cir.), 51 F.2d

56 35

Davis v. Williford, 271 U.S. 484, 46 Sup. Ct. 547, 70

L. Ed. 1048, affirming the decision of the Supreme

Court of Oklahoma in Williford v. Davis, 106

Okla. 208, 232 Pac. 828 26, 30, 32

Federal Land Bank v. Howell (10th Cir.), 123 F.2d

50 35

Federal Trade Commission v. Raladam Co., 316 U.S.

149 3

Fidelity and Deposit Co. of Maryland v. Port. of

Seattle, 9th Cir., 106 F.2d 777, 781 43

Ferguson v. Patterson (10 Cir.), 191 F.2d 584 ___37, 38

Fuller v. Board of University and School Lands of

State of North Dakota, 129 N.W. 1029, 1032,

21 N.D. 212 30

Great American Indemnity Co. v. Deatherage, 175 .

Okla. 28, 52 P.2d 827 | 48

Hardridge v. Hardridge, 168 Okla. 7,31 P.2d 597. 37

Harper v. Victor (8th Cir.), 212 Fed. 903, 129 C.C.A..

423 35

Hick’s Estate, In re, 189 Okla. 310,116 P.2d905..._ 39

Hill v. Buckholts, 75 Okla. 196, 183 Pac. 42 44

Jackson v. Gates Oil Co., 297 Fed. 549 38

Jefferson v. Gypsy Oil Co., 27 F.2d 304_..-+-_.-_--_ 38

Jones v. Norris, 125 Okla. 125, 90 P.2d 403 39

Kolb v. Ball, 101 Okla. 100, 223 Pac. 660 ______37, 38, 44

Be.

INDEX CONTINUED PAGE

Lauderdale v. Tookolo, 114 Okla. 187, 243 Pac.

587 13, 37, 43

Letts v. Letts, 73 Okla. 313, 176 Pac. 234 _______.37, 44

Lewis v. Moore, 199 F.2d 745, 749 35

Liberty Oil Co. v. Condon, National Bank, 260 U.S.

235 36

London Independent School Dist. v. Thomerson,

Tex. Civ. App., 223 S.W.2d 314 34-35

Mantz v. Gill, 147 Okla. 199, 296 Pac. 411 —______. 44

March v. Peter, 179 Okla. 207, 64 P.2d 912.___-_ 37

Mashunkashey v. Clinton, 11 F. Supp. 456,457. 38

Melton v. Cherokee Oil & Gas Co., 67 Okla. 247, 253,

170 Pac. 691, 697 -30

Micco’s Estate, In re, 59 F. Supp. 434 a

Midwestern Insurance Co. v. Cathey, 262 P.2d 434 43

Moore v. Jefferson, 190 Okla. 67, 120 P.2d 983 ____ 37

Mudd v. Perry, 25 F.2d 85 — 38

_ Neal v. Travelers Insurance Co., 188 Okla. 131,

106 P.2d 811 = 41

Oklahoma Packing Co, v. Oklahoma Gas and Elec-

tric Co., 309 U.S. 4 39

Oliver v. Cunningham, 7 Fed. 689 45-46

Parker v. Lewis, 45 Okla. 807, 147 Pac. 310 39

Parnacher et al. v. Mount, 207 Okla. 275, 248 P.2d

1021 3, 5, 13, 15, 17, 19-20, 21, 39, 41, 43

Pennoyer v. Neff, 95 US. 714 40

Perkins v. Benguet Consol. Mining Co., 342 US.

437, 442 43

Perry v. Smith, 132 Okla. 181, 269 Pac. 1074 39

_ Pfister v. Johnson, 13 F. Supp. 662 38

Philadelphia Rapid Transit Co., In re (3rd Cir.),

117 F.2d 730 41

Phillips v. Smith, 186 Okla. 636, 100 P.2d 249 13,

$7, 42, 44

—_—VYe

| INDEX CONTINUED PAGE

Roubedeax v. Quaker Oil & Gas Co., 23 F.2d 277,

280, 281 38

Scott v. McNeal, 154 U.S. 34 40

Spencer v. Colbert, 135 Okla. 111, 274 Pac. 646... 40

Starin v. New York, 115 U.S. 248, 29 L. Ed. 388, 6

Sup. Ct. 28 38

State ex rel Corder School Dist. No. R-3 v. Oetting,

Mo. App., 245 S.W.2d 157, 160

35

Taliaferro v. Reirdon, 186 Okla. 605, 99 P.2d 494_.. 39

Tennessee v. Davis, 100 U.S. 257, 25 L. Ed. OS

Terminix Co. v. Contractors’ State License Board of

Dept. of Professional and Vocational Standards,

84 Cal. App.2d 167, 190 P.2d 24 35

Troxell v. Del. L. & W. R. Co., 227 US. 434 ______ 20, 42

Trumbull County Board of Education v. State, 122

Ohio St. 247, 171 N.E. 241 . 84

United States v. Ash Sheep Co. (9th Cir.), 250 Fed.

592, affirmed in Ash Sheep Co. v. U. S., 252 U.S.

159 18, 20, 45

U. S. v. Fustin, 143 F.2d 76 47

United States v. Hellard, 322 U. S. 362 47

U. S. v. International Bldg. Co., 97 L. Ed. Advance

Sheet of May 25, 1953, p. 738 42

United States et al. v. United States Smelting, Refin-

ing and Mining Co., 339 US. 186 41

Uphoff v. Meier, 184 Okla. 378, 87 P.2d 960

Wagner’s Estate, In re, 178 Okla. 384, 62 P.2d 1186 39

Ward v. Cook, 152 Okla. 234, 3 P.2d 728

Way’s Estate, In re, 29 Cal.App.2d 669, 85 P.2d 563 38

Western Paving Co. v. Board of Commissioners of

Lincoln County, 183 Okla. 281, 81 P2d 652... 41

Williamson Heater_Co. v. Radich, 120 Ohio St. 124,

190 N.E. 403 “43

Williford v. Davis, 106 Okla. 208, 232 Pac. 828, af-

firmed in Davis v. Williford, 271 U.S. We,

13, 30, 32, 35, 44

—Vi-~

INDEX CONTINUED PAGE

Wise v. Cutchall, 171 Okla. 60, 41 P.2d 864 39

Wolfe v. Gills, 96 Okla. 6,219 Pac. 250... ==————«éiS3+F

Wyman v. Bowman (8th Cir.), 127 Fed. 257, 62 C.

C.A. 189 __ 45

STATUTES:

Act June 28, 1898, 30 Stat. 495,sec.11,21_.—ss—(<«éiS

Act July 1, 1902, 32 Stat. 641, secs. 11,.12,27_... «6-7

Act April 26, 1906, 34 Stat. 137, sec. 19 __ 5

Act May 27, 1908, 35 Stat. 312, sec. 1 7

Act May 10, 1928, 45 Stat. 495, sec. 1 7

Section 3(a) of the Act of Congress of August 4,

1947 (61 Stat. 732) 38

Section 23 of the Act of Congress of April 26, 1906,

34 Stat. 137, 145 as amended by the Act approved

May 27, 1908, 35 Stat. 312, 315 ____2-3, 5, 7, 16, 21, 29

Title 28, United States Code, Sec. 1254. si(“(wsé

Title 28 U.S.C., Sec. 1331 38

12 Okla. Stats. Ann., Sec. 977 ' 43

58 Okla. Stats. Ann., Secs. 23, 41, 631,632. ss ‘41

TEXTBOOKS AND MISCELLANEOUS:

42 Am. Jur., Public Adm. Law, Secs. 109, 157, 159 33

42 Am. Jur., Public Adm. Law, Sec. 161 33

4C.JS., Title Appeal and Error, Sec. 42... === 389

16 C.J.S., Constitutional Law, Sec. 625, p. 1272... 40

33 C.J. 1085, note 53 38

34 C.J. 823 18

34 C.J. 935 18

35 C.J.S., Fed. Courts, Sec. 187, p. 1277... Citi

49 C.J.S., Judgments, Sec. 19, p. 49 - 40-41

50 C.J.S., Judgments, Sec. 731, p. 222 18, 45

50 C.J.S., pp. 561, 562 31

50 C.J.S., Judgments, Sec. 620, p. 43 41

cages

INDEX CONTINUED PAGE

50 C.J.S., Judgment, Sec. 900, p. 530 40

51 C.J. 159, note 7 37

59 C.J. 961, et seq. 35

73 C.J.S., Public Adm. Bodies, Sec. 53 33-34

73 C.J.S., Public Adm. Bodies, Secs. 66, 16 ae

73 C.J.S., Public Adm. Bodies, Sec. nt, & Ot

74 C.J.S., Quieting Title, Sec. 14, p. 36 37

74 C.J.S., Quieting Title, Sec 62, p. 89 38

3 Words and Phrases 831 30.

Constitution of Oklahoma, Art. 7, Secs. 2, 10, 11, 12,

13, 16 39

Constitution of the United States, Art. 3, ey NE

Rule 38, Sec. 5(b), Rules of the Supreme Court of

the United States 2,3

eR rE

Supreme Court of the United States

Ocroser TerRM, 1953

NonLes PARNACHER, DeveT PARNACHER,

NANNIE PARNACHER, now Johnson,

and Sarna Scott,

Petitioners,

VERSUS

Houston B. Mount,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT AND BRIEF

IN SUPPORT THEREOF

The petitioners, Nonles Parnacher, Devet Parnacher,

Nannie Parnacher, now Johnson, and Salina Scott, pray

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Tenth Circuit

in that certain case therein entitled, “Nonles Parnacher,

Devet Parnacher, Nannie Parnacher, now Johnson, and

Salina Scott, Appellants, vs. Houston B. Mount, Appellee,”

the same being case numbered 4637 in that court. The

judgment of that court was entered October 30, 1953, and

within twenty days thereafter, and within the time allowed

by the rules of that court, petitioners filed therein a pe-

tition for rehearing, as permitted by the rules of that court,

and such petition for rehearing was denied by the Court of

Appeals on November 27, 1953. The decision has not yet

been reported, but is shown in the printed transcript of

record filed herewith (R. 93-100, 101-121).

OPINION BELOW

The opinion of the Court of Appeals for the Tenth

Circuit is set forth in the record at pages 93 to 100, in-

clusive.

The jurisdiction of this Court is invoked under Sec-

tion 1254 of Title 28, United States Code.

This petition is to obtain a writ of certiorari to review

the judgment and opinion of the United States Court of

Appeals for the Tenth Circuit, entered October 30, 1953,

affirming judgment for the defendant of the United States

District Court for the Eastern District of Oklahoma, and,

also, the order of the Court of Appeals, made on November

27, 1953, denying petitioners’ petition for rehearing in that

court, and this petition is presented pursuant to Section 5

of Rule 38 of the Rules of this Court, because of the im-

portance of the questions presented, and petitioners claim

that in its decision, the Court of Appeals has decided an

important question of Oklahoma law in a way probably in

conflict with applicable state court decisions, and that this

case presents an important question of federal law (proper

construction of Section 23 of the Act of Congress of April

26, 1906, 34 Stat. 137, 145, as amended by the Act approved

May 27, 1908, 35 Stat. 312, 315), and that the decision of

the Court of Appeals involves an erroneous application

as precedent to the facts of this case of the decision of this

Court in the case of Angel v. Bullington, 330 US. 183, and

that the decision of the Court of Appeals is probably in

conflict with applicable decisions of this Court in the hold-

ing of the Court of Appeals that the issues of this case in-

volving assertion by petitioners of certain federal rights,

are res adjudicata by reason of a certain decision of the

Supreme Court of Oklahoma (Parnacher et al. v. Mount,

207 Okla. 275, 248 P.2d 1021), and that, by reason of such

decision of the Court of Appeals, of which review is sought,

petitioners may be deprived of property without due proc-

ess of law, as petitioners are thereby denied any remedy

as to the merits of their cause of action in this case, in-

volving assertion of certain federal rights.

Petitioners say that even if the character of the rea-

sons they urge in this case as justifying this Court in grant-

ing certiorari may not clearly exactly fit into any one of

the examples of character of reasons which may be con-

sidered sufficient for granting of certiorari which are set

forth in Section 5(b) of Rule 38 of the rules of this Court,

the questions presented by this case are of such importance

as to justify the granting of a writ of certiorari.

Certiorari may be granted on.that ground. Federal

Trade Commission v. Raladam Co., 316 U.S. 149.

—4—

QUESTIONS PRESENTED

FIRST:

Whether a decision of the highest court of a State is

res adjudicata in a suit in Federal Court as to rights claimed

under laws of the United States which could have been

asserted in a suit in the Federal Courts, where in the opin-

ion of such State Court, such Court purportedly passed

upon the merits of the controversy, but also held or recog-

nized in its opinion that there was no remedy in the par-

ticular proceeding then pending before the State Court as

to such rights, for lack of jurisdiction, although recognizing

that the matter could be conclusively determined in a

proper suit in the State Courts other than the proceeding

then pending in such State Court?

SECOND:

(The first question stated in another way); in connec-

tion with the facts of this case:

Whether the rule of res judicata may apply to an

opinion of the Supreme Court of a State, in a subsequent

suit in Federal Court, where the Supreme Court of the

State, in such opinion, recognized that from the nature of

the proceeding then pending before it, the matter involved

in the subsequent suit in Federal Court could not have been

adjudicated in the particular proceeding then pending in

the State Courts?

THIRD:

Specifically, where the purported decision of the

Supreme Court of Oklahoma, of the point expressed in the

first paragraph of the syllabus by that Court in the case of

— §

Nonles Parnacher et al. v. Houston B. Mount, 207 Okla.

275, 248 P.2d 1021, which was an appeal from an order ad-

mitting a will to probate, is conclusive by way of estoppel

or as res judicata in this suit to quiet title to restricted

Indian land, in which it is asserted by petitioners that such |

will is ineffective as to restricted property because it was

not properly approved in accordance with the require-

ments of Section 23 of the Act of Congress of April 26,

1906, 34 Stat. 137, 145, as amended by the Act of May 27, |

1908, 35 Stat. 312, 315, although the Supreme Court of |

Oklahoma, in its opinion in that case recognized as the

law the long settled rule in that State that such question

presented by petitioners (plaintiffs) in this suit, COULD

NOT HAVE BEEN LITIGATED OR ADJUDICATED IN

THE TRIAL COURTS IN THAT PROCEEDING or lack

of jurisdiction, although it may be determined in a suit to |

quiet title to the restricted property in the proper State .

Court of general original jurisdiction, and for that reason

denied petitioners any remedy in that proceeding as_to

the matters complained of by them in this suit?

FOURTH:

If the above-stated question be answered in the nega-

tive, whether, the Act of a County Judge of. the State of

Oklahoma, in determining whether the will of a full-blood

Indian of the Five Civilized Tribes in Oklahoma should be

approved under Section 23 of the Act of Congress of April

26, 1906, 34 Stat. 145, as amended by Section 8 of the Act

of May 27, 1908, 35 Stat. 315, is a judicial or quasi judicial _

act, involving the exercise of discretion, or only a minis-

terial act, and, whether, after such a will has been presented

ee

ne , ot

to one such officer for approval, he has exclusive jurisdic-

tion to determine whether it should be approved, and,

whether, after such a will has been presented to one such

official for his action of approval, and he has, in the exer-

cise of discretion, determined that it should not be ap-

proved, and has refused to approve it, the same will may,

thereafter be validly approved by another such officer, or

whether it may be taken from place to place and to dif-

ferent officers given authority by the statute to approve

such a will until one is found who will approve it, and

thereby made valid as to restricted property?

FIFTH:

Specifically, as to the preceding question, whether

the County Judge of Garvin County, Oklahoma, had juris-

diction to approve the will involved in this case, after such

same will had been presented to the County Judge of

Pontotoc County, Oklahoma, when it had been executed,

for- acknowledgment and approval, under said Federal

Statute, and such County Judge of Pontotoc County, Okla-

homa, had, in the proper exercise of the discretion and

authority vested in him by said Act of Congress duly

determined that said will should not be approved and had

refused to approve it?

SUMMARY STATEMENT OF MATTERS INVOLVED

Liesiny McLean Walton was a full-blood Chickasaw

Indian, duly enrolled as such opposite Roll Number 777

of the roll of Chickasaws by blood (R. 2, 22), and, by reason

of her enrollment as a citizen of the Chickasaw Nation

(Act June 28, 1898, 30 Stat. 495, sec. 11, 21; Act July 1, 1902;

32 Stat. 641, sec. 11, 27), there was allotted and patented

to her certain land, the alienation of which, by her, was

restricted by Acts of Congress (Act July 1, 1902, 32 Stat.

641, sections 11, 12, Act of April 26, 1906, 34 Stat. 137, sec.

19; Act of May 27, 1908, 35 Stat. 312, sec. 1; Act of May 10,

1928, 45 Stat. 495, sec. 1). She died February 12, 1949,while

the owner of part of her restricted allotted land, and left

as her heirs, the petitioners (plaintiffs in the trial court)

(R. 2, 22). Petitioners, Nonles Parnacher, Devet Parnacher,

and Nannie Parnacher now Johnson, are children of said

Liesiny McLean Walton, deceased, and petitioner, Salina

Scott, is a granddaughter of deceased, being the child of a

predeceased daughter (R. 2, 22). The children are full-

blood enrolled Chickasaw Indians, and the granddaughter

is an unenrolled 7/8th blood Chickasaw Indian (R. 2, 22).

Shortly after her death, the respondent, Houston B.

Mount, a white man of no relation to deceased, filed a

petition in the County Court of Pontotoc County, Okla-

homa, for probate of an alleged will of said deceased (R. 5).

Under the terms of such will each of petitioners is to be

given $5.00, and all the rest and residue of the property

of deceased, including the restricted property which is the

subject of this suit, is devised and bequeathed to the re-

spondent (R. 12). The will was such a one as is required

to be acknowledged before and approved by a United States

Commissioner or a Judge of a County Court of the State

of Oklahoma, in order to be valid or effective as to re-

stricted property, under Section 23 of Act of Congress of

April 26, 1906, 34 Stat. 137, as amended by Section.8 of

Act of Congress of May 27, 1908, 35 Stat. 312. (Davis v.

Williford, 271 U.S. 484). The will was dated August 28,

1945, and there was attached to it on a separate sheet, a

certificate of acknowledgment before and approval by Sam

J. Goodwin, County Judge of Garvin County, Oklahoma,

dated September 18, 1945 (R. 13). Among other things the

following statements in plaintiffs’ complaint are unques-

tionably proved or undisputed (R. 4):

“Plaintiffs allege that on the date of said will, to-wit:

the 28th day of August, 1945, Moss Wimbish was the

duly elected, qualified and acting County Judge of

Pontotoc County, Oklahoma, and said Liesiny McLean,

then Walton, was a resident of Pontotoc County, Okla-

homa, and that said purported will was executed on

said date in the presence of said County Judge of

Pontotoc County, Oklahoma, at his office in the Ponto-

toc County courthouse in Ada, Oklahoma, and that,

at that time, there appeared before said County Judge

the purported testatrix, Liesiny Walton, same _ person

as Liesiny McLean, then Walton, and the attesting

witnesses on said will, Thomas Puller and Richard F.

Colbert, and also, C. L. McArthur, an attorney who

had drawn said will pursuant to an agreement with

the defendant herein that he would pay said attor-

ney’s fee therefor, and the purported will was executed

and signed by the witnesses under the supervision of

said C. L. McArthur in the presence of said County

Judge, so that said County Judge could then be in-

formed of all of the circumstances surrounding the

execution of said purported will, and, in order for it

to be submitted to him for it to be acknowledged

. -before him and for his action of approval or disap-

_ proval thereof, under said Federal statute (Section

23 of the Act of Congress of April 26, 1906, as amended

by Section 8 of the Act of Congress of May 27, 1908) ;

that, at that time, the said C. L. McArthur had attached

to said will, a sheet of paper containing a form for a

certificate of acknowledgement and approval of said

will, and when the purported will had been executed,

and signed by the witnesses, said C. L. McArthur then

requested said County Judge of Pontotoc County to

sign such certificate and approve the said will, and

submitted the same to him for his action of approval

or disapproval, and, after examination by said County

Judge of the purported testatrix through said attesting

witnesses as interpreters, she being unable to speak

the English language, but only the Chickasaw lan-

guage, the said County Judge of Pontotoc County,

Oklahoma, duly determined, in the lawful exercise of

the discretion and authority vested in him by said

Acts of Congress in view of all of the circumstances

surrounding the execution of said will, and the mat-

ters which had induced the purported testatrix to

execute the same by placing her thumb mark thereon,

insofar as could be ascertained by said County Judge,

that said purported will should not be approved, and

then refused to approve said purported will, and re-

fused to sign the certificate which said attorney had

attached thereto for said County Judge to sign, * * *

and, thereupon said C. L. McArthur secured the pos-

session of said will, with the blank certificate attached

thereto, which showed that said Liesiny Walton had

appeared before said County Judge of Pontotoc County

at that time, and carried the purported will and at-

tached blank certificate from the office of said County

Judge of Pontotoc County. * * *

“Plaintiffs further allege that from that time until

the date of the death of said Liesiny McLean, then

Walton, said purported will was in the possession of

said attorney C. L. McArthur, and the defendant

herein, and that plaintiffs had no knowledge thereof

prior to the death of said Liesiny McLean, then Walton,

--10—

and, that, after the date of the death of said Liesiny

McLean, then Walton, and on the 17th day of Febru-

ary, 1949, said purported will was filed in the County

Court of Pontotoc County, Oklahoma, together with a

petition by the defendant herein for it to be admitted

to probate, and that when it was filed in said County

Court, the blank certificate which said attorney had

originally had attached to it, showing appearance of

said Liesiny Walton before said County Judge of

Pontotoc County, Oklahoma, on the * * * date of said

will, was not attached to said will, but there was at-

tached thereto on a separate sheet of paper a pur-

ported certificate of acknowledgment before and ap-

proval of said purported will by the County Judge of

Garvin County, Oklahoma, which certificate had been

purportedly executed by said County Judge of Garvin

County, Oklahoma, on the 18th day of September,

1945, and, plaintiffs allege that after said purported

will had been executed in the presence of the County

Judge of Pontotoc County, Oklahoma, on the 28th day

of August, 1945; and he had refused to approve it, said

attorney C. L. McArthur, at the request of the defend-

ant herein, and under an agreement with the defendant

that he would pay the fee of said attorney therefor,

and on the 18th day of September, 1945, without any

notice to the plaintiffs, took said Liesiny McLean, then

Walton, and said will which the County Judge of

Pontotoc County had refused to approve, to Pauls

Valley, Oklahoma, and secured * * * the purported

certificate of acknowledgment and approval which

was attached to said purported will when it was filed

for probate after the death of said Liesiny McLean,

then Walton; * * * that, * * * upon being informed by

said County Judge of Garvin County, Oklahoma, that

he would attempt to approve said purported will and

would sign such a certificate, said attorney, C. L. Mc-

—jI—

Arthur, detached from said purported will, the certifi-

cate thereon which he had originally prepared for the

use of the County Judge of Pontotoc County, Okla-

homa, and substituted therefor and attached to said

purported will, the purported certificate of acknowl-

edgment and approval of said purported will which

was signed by said County Judge of Garvin County,

Oklahoma” (R. 5, 6).

Plaintiffs’ (petitioners’) contention as to the effect of

the purported approval of the will by the County Judge

of Garvin County, after the County Judge of Pontotoc

County had refused to approve it, is set forth in the com-

plaint filed in this action in the United States District Court

for the Eastern District of Oklahoma, as follows:

“Plaintiffs allege that the purported approval of

said will by the County Judge of Garvin County,

Oklahoma, was void, and added no validity to said

purported will, for the reason that the County Judge

of Garvin County, Oklahoma, had no jurisdiction or

authority to approve the same for the purported will

which the County Judge of Garvin County attempted

to approve was the same will which had been sub-

mitted to the County Judge of Pontotoc County,

Oklahoma, for his action of approval or of refusal to

approve the same, and which said County Judge of

Pontotoc County, Oklahoma, had refused to approve,

* * * on the date of its execution, and who, after it

had been submitted to him for his action, had ex-

clusive jurisdiction of said matter as to whether it

should have been approved or not * * *” (R. 7).

This contention is not answered by the opinion of the

Court of Appeals in this case (R. 92-100).

mo

In the proceeding to probate the will in the State

Courts, the petitioners herein contested the will and the

County Court of Pontotoc County, Oklahoma, refused to

admit the will to probate, and respondent herein appealed

from that decision to the District Court of Pontotoc County,

Oklahoma, for trial de novo, on the issue as to whether the

will should be admitted to probate, and that court, on

August 29, 1949, rendered judgment that it be admitted

to probate, and directed that upon the remand of the case

to the County Court (the court of original probate juris-

diction), that respondent be issued letters testamentary

without bond, as directed in the will (R. 75-88), but, as to

the question whether the will had been validly approved

so as to be effective as to restricted property, the State

District Court held:

“The court concludes that the approval and ac-

knowledgment of the will of a full blood Indian re-

quired by the Act of April 26, 1906, 34 Stat. 137, Sec.

23, as amended by the Act of Congress of May 27, 1908,

35 Stat. 312, Sec. 8, is not an element of the execution

and attestation contemplated by the statutes of Okla-

homa, and is not within the purview of the jurisdic-

tion of the County Court or this court on appeal in

admitting the will to probate” (R. 85).

The petitioners herein, in their contest filed in the

probate proceeding, mentioned the fact that the County

Judge of Pontotoc County had refused to approve the will,

and, that, thereafter, the proponent of the will (respondent

herein), had obtained the purported approval of the will

by the County Judge of Garvin County, Oklahoma, not, as

a ground for contest of the probate of the will, but in plead-

' ing facts alleged to show that the execution of the alleged

i

RE gy pe ee ae tray erage

collins

will by the testatrix had been obtained by undue influence,

a ground of contest of probate of a will (R. 78).

The ruling of the State District Court that there was

no jurisdiction in the County Court, the court of original

probate jurisdiction, or in the District Court, on appeal, in

the proceeding for probate of the will, to determine whether

the will was properly approved in accordance with the

Act of Congress, so as to be effective to pass title to

restricted Indian land, or other restricted property, was in

accordance with the long-settled rule in the State of

Oklahoma that such question cannot be determined in

such proceeding, but can only be determined by suit to

quiet title to the restricted property, or in ejectment, in

the District Court of the State, the court of general original

jurisdiction (even after admission of a will to probate), or

in the proceeding for distribution of an estate, it not being

a triable issue in the proceeding to probate a will. Arm-

strong v. Letty, 85 Okla. 205, 209 Pac. 168; Lauderdale v.

Tookolo, 114 Okla. 187, 243 Pac. 587; Phillips v. Smith, 186

Okla. 636, 100 P.2d 249; Williford v. Davis, 106 Okla. 208, 232

Pac. 828, affirmed in Davis v. Williford, 271 U.S. 484.

Petitioners herein appealed from the judgment of the

District Court of Pontotoc County, Oklahoma, that the will

be admitted to probate to the Supreme Court of the State

and that Court rendered a decision by an opinion filed on

March 25, 1952, affirming the judgment of the State Dis-

trict Court that the will be admitted to probate, but peti-

tioners’ petition for rehearing in that Court was not over-

ruled until September 30, 1952, and application for leave

to file a second petition for rehearing was denied October

21, 1952. Parnacher et al. v. Mount, 207 Okla. 275, 248 P.2d

—14—

1021. The decision of the Supreme Court of Oklahoma did

not become final on the issue as to whether the will should

be admitted to probate or the mandate of that Court was

not issued until the application for leave to file a second

petition for rehearing was denied on October 21, 1952.

In the appeal in the Supreme Court of Oklahoma, peti-

tioners did assert that the will was void as to restricted

property, and that it should then be declared to be void

as to restricted property, because not properly approved in

accordance with the Act of Congress, and in the opinion of

the Supreme Court of Oklahoma it was purportedly held

that the will appeared to have been properly acknowledged

before and approved by a County Judge of Oklahoma, and

that the act of approving such a will is only a ministerial

act, and that the fact that the County Judge of Pontotoc

County had refused to approve the will did not render

invalid the approval of it by the County Judge of Garvin

County, and the following statement was included in the

first paragraph of the syllabus by the Supreme Court of |

Oklahoma:

“Sec. 23, Act of Congress of April 26, 1906, as

amended by Act of May 27, 1908, 35 Stat. 312, pro-

viding that the will of a fullblood Indian, bequeathing

restricted real estate, shall be invalid if it disinherits

children, unless acknowledged before and approved

by ‘a Judge of a County Court of the State of Okla-

homa’, does not specify that County Judge shall have

such authority, and any County Judge of Oklahoma

may approve such will, regardless of failure to ap-

prove by any other County Judge to whom previously

submitted.”

~15—

But, in the opinion of the Supreme Court of Okla-

homa, in Parnacher et al. v. Mount, supra, it was further

declared:

“In Armstrong v. Letty, 85 Okl. 205, 209 P. 168, it

was said in the first syllabus:

“*The approval and acknowledgment of the will of

a fullblood Indian, required by Act Cong. April 26,

1906, sec. 23, as amended by Act. Cong. May 27, 1908,

sec. 8, is not an element of the execution and attestion

contemplated by the statute of Oklahoma and is not

within the purview of the jurisdiction of the county

court in admitting a will to probate.’

“And in the body of that opinion it was said:

“*This court has repeatedly held that the sole ques-

tion involved, when a will is offered to the county

court for probate, is the factum of the will. That is, has

the will been executed and attested in the manner

and form required by the statutes, and was the testator

competent to make a will at the time he made it, and

was he free from the disabilities which operate under

our statute to defeat the will?’”

The Supreme Court of Oklahoma, in Parnacher et al.

v. Mount, therefore, obviously quoted with approval from

Armstrong v. Letty, to the effect that the question pre-

sented by petitioners herein as to the invalidity of the will

as to restricted property for lack of proper approval could

not be conclusively determined in the proceeding then

pending before it, although it could be adjudicated in an

independent action in the proper court to try the title to

the restricted property, such as this case. Petitioners say

that there is not any other way to construe that opinion.

Petitioners were denied any remedy for the matters they

—~16—

complained of in this suit in that proceeding, although by

the settled rule of practice in the State, they had a remedy

by suit to quiet title (or in ejectment if they had lost

possession of the restricted land) in the District Court of

the State, the court of general original jurisdiction. Arm-

strong v. Letty, surpa.

This suit was commenced by petitioners as plaintiffs

against respondent as defendant in the United States Dis-

trict Court for the Eastern District of Oklahoma on April

17, 1952 (R. 1-15). It is brought to quiet title to the re-

stricted land, and other restricted property, mainly on the

ground that the will is void as to restricted property be-

cause under the facts of this case the County Judge of

Garvin County did not have jurisdiction to approve the

will after the question as to whether it should have been

approved was submitted.to the County. Judge of Pontotoc

County and he had refused to approve it, and that the pur-

ported approval is ineffective. The basis of federal juris-

diction is the existence of a federal question (proper con-

struction of Section 23 of Act of Congress of May 27, 1908,

35 Stat. 312, as amended by Act of May 27, 1908, 35 Stat.

312, Sec. 8) (R. 1), the amount in controversy exceeding

$3,000.00, exclusive of interest and costs (R. 1, 21, 23).

Respondent filed an answer after motion to dismiss was

overruled (R. 21), and the case was tried on February 10,

1953 (R. 27), and at the conclusion of the trial, judgment

was rendered for defendant (respondent) (R. 65). The

Federal District Court was of the opinion that the opinion -

and decision of the Supreme Court of Oklahoma in the

probate proceeding was not res adjudicata or the basis for

any plea of estoppel by judgment as to the issues in this

suit (R. 67), but rendered judgment for the defendant

(respondent) on the ground that the will had been properly

approved by the County Judge of Garvin County, although

it had been previously submitted to the County Judge of

Pontotoc County for approval and he had refused to

approve it, and that the approval of it by the County Judge

of Garvin County was valid and effective (R. 29, 30).

Petitioners appealed to the Court of Appeals for the Tenth

Circuit, and that Court affirmed the judgment for defend-

ant on the ground that the decision of the Supreme Court

of Oklahoma in the will contest proceeding was res adjudi-

cata or an estoppel by judgment as to the issues presented

by plaintiffs in this case (R. 93-100), and did not decide

the question as to whether the attempted approval of the

will by the County Judge of Garvin County was void and

ineffective, because of lack of jurisdiction after the will

had been presented to the County Judge of Pontotoc

County for acknowledgment and approval and he had re-

fused to approve it.

Petitioners assert that the error in the decision of the

Court of Appeals of which certiorari is now sought for

review of same is clearly set forth in the petition for re-

hearing and brief in support thereof which petitioners filed

in the Court of Appeals, and which is set forth in full in the

record (R. 101-120). The opinion and decision of the

Supreme Court of Oklahoma in Parnacher et al. v. Mount,

supra, is not res judicata as to the issues in this suit be-

cause of the well-established rule that a judgment is not .

conclusive on matters which were beyond the jurisdiction

of the Court or which by reason of the nature of the case or

the form of the action could not have been adjudicated in

the proceeding, and the Supreme Court of Oklahoma recog-

nized, in its opinion in Parnacher et al. v. Mount, that was

the case by its quotation with approval to that effect from

n Armstrong v. Letty, 85 Okla. 205, 209 Pac. 168. Under this

applicable rule (50 C.J.S., Judgments, sec. 731, page 222;

34 C.J. 935; 34 C.J. 823), it makes no difference if the point

is purportedly decided, the decision is not res adjudicata,

as to such point when the power of the Court to determine

the question in the proceeding before it is denied, on the

ground the remedy is not in that proceeding, but if the

right exists, the remedy lies in another kind of action or

proceeding in the proper court having jurisdiction. (United

pee Ash Sheep Co. (9th Cir.),-250 Fed. 592, affirmed

Ash Sheep Co. v: U. S., 252 U.S. 159). And this principle

does not conflict with the decision of this Court in Angel

v. Bullington, 330 U.S. 183, as-long-as it is recognized that

a Temedy in another proceeding or action in another court

of the State is a, if the right exists, as was done by the

Supreme Court of in its decision in Parnacher

et al. v. Mount, supra. (See brief in support of petition for

rehearing in the Court of Appeals) (R. 115-119).

By the decision of the Supreme Court of Oklahoma, in

the will contest proceeding petitioners were denied any

remedy in that proceeding as to the matters complained of

by them in this suit, not on the ground of inaccessibility of

all the courts of the State to the litigation of the point in-

volved, but on the ground that the distribution of judicial

power among the various courts of the State required the

suit to obtain a conclusive determination of the point in

question to be. brought in another court in the State, thus

‘bringing thiscase within the exception to the rule applied

—19—

in Angel v. Bullington, supra, as stated in the opinion of

this Court in that case, and, now, in this suit, the Court

of Appeals for the Tenth Circuit has refused to pass upon

the merits of plaintiffs’ suit upon the ground that the claim

is res judicata by reason of the decision of the Supreme

Court of Oklahoma in the probate proceeding, and, so,

petitioners say they are wrongfully deprived of their

remedy to obtain an adjudication of the federal rights

asserted by them herein, and may be thus deprived of their

property without due process of law, unless this Court

grants this petition for a writ of certiorari in this case, in

order to review the decision of the Court of Appeals.

REASONS RELIED UPON FOR ISSUANCE OF WRIT

1. The Court of Appeals for the Tenth Circuit has

decided an important question of local law in a way prob-

ably in conflict with applicable local decisions, because

under the settled rule of the State Courts of Oklahoma

there can never be any conclusive determination of the

validity of a will as an alienation of property in the pro-

ceeding for probate of such will, the only issue triable in

such proceeding being the factum of the will, that is,

whether it nas been executed in accordance with the re-

qu.rements of the state statutes for execution of a will

and whether the maker of the will was free from disabil-

ities which operate to defeat the will under the statutes

of the State.

2. The Court of Appeals for the Tenth Circuit did in

its opinion misconstrue the decision of the Supreme Court

of Oklahoma in the case of Parnacher et al. v. Mount, 207

enlies

Okla. 275, 248 P.2d 1021, and by reason thereof has denied

petitioners any remedy as to the matters complained of by

them in this suit and as to the federal rights asserted by

them herein as such federal rights were not necessarily

involved or adjudicated in the litigation of the State Courts.

3. In the decision and opinion of the Court of Appeals

there has been an erroneous application as precedent of the

decision of the Supreme Court of the United States in Angel

v. Bullington, 330 U.S. 183, as the situation presented by

this case was specifically expected from the operation of

the rule of res judicata in the opinion of this Court in that

case.

4. The decision of the Court of Appeals for the Tenth

Circuit is probably in conflict with applicable decisions of

this Court on the point as to when rights asserted under

federal laws have been conclusively adjudicated in a pro-

ceeding in State Courts so as to be res judicata in a proper

suit in the Federal Courts (Angel v. Bullington, 330 U.S.

183; Troxell v. Del. L. d W. R. Co., 227 U.S. 434; Ash Sheep

Co. v. U. S., 252 U.S. 159).

5. The opinion of the United States Court of Appeals

for the Tenth Circuit may deprive petitioners of property

without due process of law unless corrected by this Court,

as by such decision petitioners are denied any remedy as

to the rights, asserted by them in this suit and the opinion

of the Supreme Court of Oklahoma, which the United

States Court of Appeals held to be res judicata as to the

rights asserted by petitioners, recognized that there was

no jurisdiction in the trial courts in Oklahoma in that

particular proceeding to adjudicate the issues presented

———————

21

by this suit, and petitioners were thus denied any remedy

in that proceeding as to the issues presented by this suit.

6. The United States Court of Appeals has by its

decision so far departed from a correct application of the

rules as to when a judgment or decision of a court of a mat-

ter is res judicata or an estoppel by judgment, that the

Court of Appeals has departed from the accepted and usual

course of judicial proceedings in such a way as to call for

the exercise of this Court’s power of supervision, -

7. The case presents an important question of Fed-

eral Law (proper construction of Section 23 of Act of Cong.

of April 26, 1906, 34 Stat. 137, 145, as amended by section

8 of Act of May 27, 1908, 35 Stat. 312, 315, as applied to

the facts of this case) which should be decided and settled

in this case and has erroneously refused to decide the ques-

tion because of an erroneous assumption that the question

is res adjudicata and previously conclusively determined

by a decision of the Supreme Court of Oklahoma.

8. Certiorari should be granted in this cause because

of the importance of questions presented. 6

SPECIFICATIONS OF ERROR

1. The Court of Appeals erred in holding that the

decision of the Supreme Court of Oklahoma in the case of

Parnacher et al. v. Mount, 207 Okla. 275, 248 P.2d 1021,.

was res judicata and conclusive on petitioners in this case

as to the question as to whether the County Judge of

Garvin County, Oklahoma, had jurisdiction to approve the

will of Liesiny McLean Walton, and as to whether the

—~—22—

purported approval of the will by the County Judge of

Garvin County, Oklahoma, complied with the requirements

of Sec. 23 of the Act of Congress of April 26, 1906, 34 Stat.

137, 145, as amended by Act approved May 27, 1908, 35

Stat. 312, 315, and as to whether the alleged will is void

and ineffec ive as to restricted property.

2. The Court of Appeals erred in not holding that the

question as to whether the will of Liesiny McLean Walton

had been properly approved in accordance with said Act

of Congress so as to be effective as an alienation of re-

stricted property had not been conclusively determined by

the decision of the Supreme Court of Oklahoma in the case

of Parnacher et al. v. Mount, 207 Okla. 275, 248 P.2d 1021,

on the appeal from the order admitting the will to probate.

3. The Court of Appeals erred in not holding that the

County Judge of Garvin County, Oklahoma, did not have

jurisdiction to approve said will after such same will had

been presented to the County Judge of Pontotoc County,

Oklahoma, for his approval at the time of its execution,

and he had refused to approve it.

4. The Court of Appeals erred in not holding that the

alleged will of Liesiny McLean Walton is void as to re-

stricted property.

5. The Court of Appeals erred in not determining

that the plaintiffs are the owners by inheritance of all

property of Liesiny McLean Walton which she owned at

the time of her death and which was subject to restrictions

upon alienation imposed by Acts of Congress, and erred in

not reversing the judgment of the United States District

Court for the Eastern District of Oklahoma with directions

—23—-

that judgment be rendered for plaintiffs who are the peti-

tioners here.

6. The Court of Appeals erred in denying petitioners’

petition for rehearing.

Wherefore petitioners pray that a writ of certiorari

be granted by this Court in order that the decision of the

United States Court of Appeals for the Tenth Circuit in

case numbered 4637 therein, entitled, Nonles Parnacher,

Devet Parnacher, Nannie Parnacher, now Johnson, and

Salina Scott, appellants, v. Houston B. Mount, appellee, may

be reviewed by this Honorable Court, and that the judg-

ment of said Court of Appeals be reversed and for such

other and further relief as this Court may deem proper.

James W. Bounns,

___,. Hugo, Oklahoma,

Counsel for Petitioners.

~—24-—

Ree

eiiesnnieeniineeeaeel

Supreme Court of the United States

OcToser Term, 1953

NONLES PARNACHER, Devet PARNACHER,

NANNIE PARNACHER, now Johnson,

and Sarna Scorr,

' > ~» Petitioners,

VERSUS

Houston B. Mount,

Respondent.

BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

OPINION OF THE COURT BELOW

The opinion of the Court of Appeals for the Tenth

Circuit in this case has not yet been reported, but is in-

cluded in the transcript of the record filed herewith at pages

92 to 100, inclusive. The District Court did not write an

opinion.

JURISDICTION

The jurisdiction of this Court is invoked under Sec-

tion 1254 of Title 28, United States Code.

OO

—25—

STATEMENT OF THE CASE

Reference is made to the statement of the case con-

tained in the petition for writ of certiorari filed herewith.

Some material allegations of the complaint (R. 1-14),

which are admitted by the answer (R. 21-27) are that the.

matter in controversy exceeds, exclusive of interest and

costs, the sum of $3,000.00, and that the value of the prop- —

erty involved is in excess of $3,000.00; the plaintiffs (pe-

titioners) are in the possession of the real estate, and the

land was allotted and patented to Liesiny McLean, then

Walton, deceased, a full-blood Chickasaw Indian, enrolled

opposite roll No. 777 of the roll ef Chickasaws by blood,

and she was the owner of the land involved at her death,

and during her lifetime it was restricted, and the plaintiffs

are the heirs of the allottee and are the owners of the land

and other restricted property of which she died seized if

the will is void as to restricted property, and, if the will

is void as to such restricted property, the plaintiffs acquired

title thereto by inheritance from the allottee; and that the

purported will, if effective, disinherits them, and that the

three plaintiffs who are children of the allottee are full-

blood, enrolled Chickasaw Indians, and the plaintiff who

is a granddaughter of the allottee is of 7ths degree of In-

dian blood, and that the will is void as to restricted prop-

erty unless it was properly acknowledged and approved

in compliance with Section 23 of the Act of Congress of

April 26, 1906, 34 Stat. 137, 145, as amended by Section 8

of the Act of May 27, 1908, 35 Stat. 312, 315, and the re- |

stricted land involved is situated in the Eastern District of.

Oklahoma, of which the defendant is a resident.

|.

The County Judge of Pontotoc County, before whom

the will was executed, and to whom it was then presented

for acknowledgment and approval, testified by deposition

which was admitted in evidence in this case (R. 40, 70) that

the testatrix was an old full-blood Indian woman and that

the will was disinheriting her children and grandchild and

devising her property to a white man, and that it did not

seem to him to be a proper one for approval under the cir-

cumstances; that he was told that Mr. Mount had been

helping her and was going to help her; that he was not

informed how much he had helped her and had no way

of knowing what he was going to do for her in the future,

and was not shown that there was any adequate considera-

tion for the disinheritance of the children and grandchild,

and, therefore, determined that the will should not be

approved and refused to approve it (R. 42-45).

The federal law requires that both the acknowledg-

ment and approval be certified by the same officer in writ-

ing on the will. That is undisputed. Davis v. Williford, 271

U.S. 484.

The testimony of Moss Wimbish, the County Judge to

whom the will was presented when it was executed and

who refused to approve it, shows that there was not any

question about the acknowledgment (R. 45), but the cer-

tificate, which Mr. McArthur, the attorney who had drawn

the will, had prepared and had attached to it at the time

of its execution and which he asked the County Judge

of Pontotoc County to sign, was a certificate of both ac-

knowledgment and approval (R. 54, 55, 88), and that

Judge Wimbish, refused to sign it because we would not

——

—2Te

approve the will (R. 42, 55); that Mr. McArthur argued to

him that he had no discretion in the matter and that it

was his duty to approve the will if the testatrix acknowl-

edged it and appeared to know what she was doing and it

was what she wanted to do, but that he did not agree with

that and believed that the approval was a matter of discre-

tion (R. 43). This testimony is undisputed.

The County Judge of Garvin County testified that

when the will was presented to him for approval he was in-

formed by Mr. McArthur that the County Judge of Pontotoc

County has refused to approve it (R. 47), and that Mr.

McArthur made representations to him as to why the

County Judge of Pontotoc County would not approve it

(R. 47, 48). He had testified in County Court in the probate

proceeding, in effect, that he considered it his duty to ap-

prove it, if he was satisfied the will was as the testatrix

wanted it and if that was what she wanted to do and that

she understood the contents of the instrument, regardless

of what disposition the will was making of her property

R. 49-50).

SPECIFICATIONS OF ERROR

1. The Court of Appeals erred in holding that the

decision of the Supreme Court of Oklahoma in the

case of Parnacher et al. v. Mount, 207 Okla. 275, 248

P.2d 1021, was res judicata and conclusive on petition-

ers in this case as to the question as to whether the

County Judge of Garvin County, Oklahoma, had juris-

diction to approve the will of Liesiny McLean Walton,

and as to whether the purported approval of the will

by the County Judge of Garvin County, Oklahoma,

complied with the requirements of Section 23 of Act of

:

Congress of April 26, 1906, 34 Stat. 137, 145, as amended

by Section 8 of Act approved May 27, 1908, 35 Stat. 312,

315, and as to whether the alleged will is void and in-

effective as to restricted property.

2. The Court of Appeals erred in not holding that

the question as to whether the will of Liesiny McLean

Walton had been properly approved in accordance with

said Act of Congress, so as to be effective as an aliena-

tion of restricted property, had not been conclusively

determined by the decision of the Supreme Court of

Oklahoma in the case of Parnacher et al. v. Mount,

207 Okla. 275, 248 P.2d 1021, on the appeal from the

order admitting the will to probate.

y,3. The Court of Appeals erred in not holding that

the County Judge of Garvin County, Oklahoma, did

not have jurisdiction to approve said will after such

same will had been presented to the County Judge

of Pontotoc County, Oklahoma, for his approval at

the time of its execution, and he had refused to approve

it.

4. The Court of Appeals erred in not holding that

the alleged will of Liesiny McLean Walton is void as

to restricted property.

5. The Court of Appeals erred in not determining

that the plaintiffs are the owners by inheritance of all

property of Liesiny McLean Walton which she owned

at the time of her death and which was subject to

restrictions upon alienation imposed by Acts of Con-

gress, and erred in not reversing the judgment of the

United States District Court for the Eastern District of

Oklahoma with directions that judgment be rendered

for plaintiffs who are the petitioners here.

6. The Court of Appeals erred in denying peti-

tioners’ petition for rehearing in that court.

—~29—~

First Proposition

The County Judge of Garvin County, Oklahoma, had no

jurisdiction to approve the will after the question as to whether

it should be approved had been presented to the County Judge

of Pontotoc County, Oklahoma, and he had refused to approve

it.

(Specifications 3, 4, 5)

We are presenting this proposition first so that the

Court may be advised as to the question which the Court

of Appeals did not decide.

Section 23 of the Act of Congress of April 26, 1906

(34 Stat. 137, 145), as amended by Section 8 of Act of May

. 27, 1908, (35 Stat. 312, 315), provides:

Provided, that no will of a full-blood Indian devising

real estate shall be valid if such last will and testament

disinherits the parent, wife, spouse, or children of

such full-blood Indian, unless acknowledged before

and approved by a judge of the United States court

for the Indian Territory, or a United States Commis-

sioner, or a judge of a county court of the State of

Oklahoma.”

The act of approving or refusing to approve a will

under such statute is not merely a ministerial act, but is a

judicial or quasi-judicial act. It is not a perfunctory matter

or a mere matter of form but the act of approval or re-

fusal to approve such a will involves the exercise of dis-

cretion, as is shown by the opinion of this Court in the case

iin

of Davis v. Williford, 271 U.S. 484, 46 Sup. Ct. 547, 70 L. Ed.

1048, affirming the decision of the Supreme Court of Okla-

homa in Williford v. Davis, 106 Okla. 208, 232 Pac. 828,

and as is shown by the opinion of the Supreme Court of

Oklahoma in Anglin v. Patterson, 121 Okla. 106, 248 Pac.

632. The statute requires both an acknowledgment and an

approval of the will, which are two separate things. The

act of taking the acknowledgment may be ministerial, but

the act of approving or refusing to approve the will is not

merely a ministerial act but is a judicial or quasi-judicial

act calling for the exercise of discretion, and the authority

to approve carries with it the authority to refuse an ap-

proval.

“The very act of ‘approval’ imports the act of pass-

ing judgment, the use of discretion, and the deter-

mination as a deduction therefrom unless limited by

the context of the statute.”

—Fuller v. Board of University and School Lands

of State of North Dakota, 129 N.W. 1029, 1032,

21 N.D. 212;

3 Words and Phrases 831.

In Melton v. Cherokee Oil & Gas Co., 67 Okla. 247,

253, 170 Pac. 691, 697, the same is held, and that:

“The act of approval ‘imports the act of passing

judgment, the use of discretion, and the determination

as a deduction therefrom’; to confirm, ratify, sanction,

or consent to some act or thing done by another;

"= 8 wD

and that:

“Official action, the result of judgment or discretion,

is a ‘judicial act’.”

—_;

In 50 C.J.S., at page 561, under heading, “Judicial”,

it is said:

“The distinction between ministerial, judicial, and

other official acts, seems to be that, where the law

prescribes and defines the duty to be performed with

such precision and certainty as to leave nothing to

the exercise of discretion or judgment the act is minis-

terial; but, where the act to be done involves the

exercise of discretion or judgment in determining

whether the duty exists, it is not to be deemed merely

ministerial * * *.”

At page 562, it is said:

“«* * * “Quasi Judicial.” The term is used in a sense

at least analogous to that of the word “judicial” * * *.’

In a general sense it is used to indicate an exercise of

judgment or discretion or a choice of alternatives;

and is particularly applied to acts, duties, or functions

which require the exercise of discretion or judgment

by officers or agencies other than those which strictly

constitute a part of the judiciary, and specifically those

officers or agencies which constitute the administra-

tive or executive branch of the government. * * * the

more accurate term ‘quasi judicial’ is employed to

describe governmental officers, boards, or agencies

which, while not a part of the judiciary, exercise

functions of a judicial nature; and so, where a non-

judicial officer has the authority to hear and determine

the rights of persons or property, or the propriety of

doing an act, or where a power vests in a judgment or

discretion, so that it is of a judicial character or nature,

but does not involve the exercise of the functions of a

judge, or where it is conferred on an officer having no

authority of a judicial character, the expression used

is generally ‘quasi judicial’.”

—32——

In this Court’s opinion, in Davis v. Williford, supra,

with reference to said Act of Congress, it was said:

inheritance; and that, to this end, a will devising his

land to other persons should not be valid unless ac-

knowledged before and approved by a judicial or quasi

judicial officer of the United States. To make certain of

this, the officer was not to approve the will unless the

testator appeared before him in person and acknow]l-

acter and based upon such consideration as to warrant

its approval. Plainly, it was not intended that such

acknowledgment and approval should be a perfunctory

matter.”

In discussing the meaning of the proviso in the sec-

tion, the Supreme Court of Oklahoma, in Anglin v. Pat-

terson, supra, said:

“Thus it appears that before such will is valid there

must be two distinct acts upon the part of the officer

designated by Congress, before whom such person ap-

pears to execute such a will. The first act required is

that the will be acknowledged before such officer. It

then requires that the will be approved by such officer.

It was clearly the intention of Congress that only cer-

tain classes of officers be given the authority before

whom such a will might be acknowledged and ap-

proved. And from this act we further conclude that it

was the intention of Congress that such officers should

so be informed of the acts and circumstances sur-

rounding the execution of said will that the execution

33

might then be submitted to them for their approval, or

if the facts justified it, to refuse an approval.”

The Supreme Court of Oklahoma thereby said in that

case that the will should be executed before the officer be-

fore whom it was to be acknowledged and to whom it was

to be submitted for approval.

Granting that there is no specific provision as to venue

in the statute; it may be that the County Judge of Garvin

County would have had jurisdiction to approve the alleged.

will if it had not already been submitted to the County

Judge of Pontotoc County for approval or refusal of ap-

proval, and he had refused to approve it (R. 42, 55, 83). It

may not be strictly a question of whether the Courity

Judge of Pontotoc County, in refusing to approve the will

rendered the question as to whether it should be approved

res judicata (42 Am. Jur., Public Adm. Law, Sec. 161),

but it is a question of jurisdiction (73 C.J.S., Public Adm.

Bodies, Sec. 53). Administrative determinations made with-

out jurisdiction are void, even if the question arises in a

collateral proceeding (42 Am. Jur., Public Adm. Law, Sec-

tions 109, 157, 159; 73 C.J.S., Public Adm. Bodies, Sections

66, 146).

Did the County Judge of Garvin County have juris-

diction?

The answer is found in Section 53 of Title, Public Ad-

ministrative Bodies and Procedure, in Volume 73, C.J.S.,

where it is said:

“The powers and duties of particular administrative

Officers and agencies as against other officers and

agencies are determined by the organic and statutory

alien

provisions which grant them their powers and define

their duties; and where they have concurrent powers

or coordinate jurisdiction, the one which first acquires

jurisdiction over a particular matter has exclusive

jurisdiction thereof.”

Under this rule, the County Judge of Garvin County

had no jurisdiction or authority to approve the purported

will in this case, and his action in attempting to do so, was

void, and such will had already been, in effect, adjudged

invalid and rendered inoperative as to restricted lands and

property of Liesiny Walton by the action of the County

Judge of Pontotoc County in refusing to approve it when

it was submitted to him for his action of approval. If a new

will had been executed, it might have been a different

situation.

Under the authorities cited in 73 C.J S., Title, Public

Administrative Bodies and Procedure, Sec. 53, page 376,

note 79, the will is void as to restricted property. If this was

not the rule, an intolerable situation would be created,

and the purposes and objects of the Federal statute, which

are stated in Davis v. Williford, supra, would be circum-

vented, and the statute rendered inoperative and of prac-

tically no protection to the parties for whose benefit and

protection it was enacted.

Under said note 79 at page 376 of Volume 73, C.J S.,

supra, the following authorities are cited in support of the

text above quoted: Alabama Elec. Co-op. v. Alabama Power

Co., 251 Ala. 190, 36 So.2d 523; Trumbull County Board of

Education v. State, 122 Ohio St. 247, 171 NE. 241; London

Independent School Dist. v. Thomerson, Tex. Civ. App.,

—35e-~ %

223 S.W.2d 314; Terminix Co. v. Contractors’ State License

Board of Dept. of Professional and Vocational Standards,

84 Cal.App.2d 167, 190 P.2d 24; State ex rel. Corder School

Dist. No. R-3 v. Oetting, Mo. App., 245 S.W.2d 157, 160.

There is no authority to the contrary which we have been

able to find, except what was said by the Supreme Court

of Oklahoma in Parnacher v. Mount, supra, 207 Okla. 275,

248 P.2d 1021, which petitioners contend is not binding on

this Court in this case.

““All questions of the jurisdiction, power, or au-

thority of an administrative agency to make an order

or decision which it undertook to make are open to

judicial inquiry and determination. The court is not

bound or concluded by the agency’s finding of juris-

dictional facts, but may examine and weigh all the

evidence concerning such facts and make therefrom

its own independent findings.” (73 C.J.S., Public Adm.

Bodies, sec. 227, page 597).

The question is one of construction of a federal —

statute and the statute should be construed in the light of

what was said regarding its purpose in the opinion of this’

Court in Davis v. Williford, supra, and the statute should .

not be construed so as to defeat its purpose. To hold this will

valid as to restricted property would completely defeat -

the purpose of the Federal law and render it of no pro- -

tection whatever to the parties for whose benefit it was

enacted. For applicable rules of statutory construction,

see: Harper v. Victor (8th Cir.), 212 Fed. 903, 129 C.C.A.

423; Darby-Lynde Co. v. Alexander (10th Cir.), 51 F.2d

56; Federal Land Bank v. Howell (10th Cir.), 123 F.2d 50;

Lewis v. Moore, 199 F.2d 745, 749; 59 C.J. 961 et seq. If this

—~36— .

will was held valid, as to restricted property, the policy

of the Federal Government in providing for the protective

device of approval of an administrative authority for such

a will would be frustrated, and the statute rendered in-

effectual and any officer to whom such a will was sub-

mitted for approval could not follow the directions of the

Supreme Court of the United States in Davis v. Williford,

supra, with any effect, and parties who were wrongfully

attempting to obtain a will of a full-blood Indian to re-

stricted land, which was without adequate consideration

disinheriting the lawful heirs would be left free to go to

all of the 77 County Judges in the State of Oklahoma, and,

although the approval of the will was refused by 76 of

them, induce the 77th one to approve it, and determine that

all of those who had refused to approve it had erred, or to

_go to every United States Commissioner in the United

States seeking an approval of the same will after being re-

fused an approval of it by every County Judge in the

State of Oklahoma. Congress never intended any such

absurdity by this statute. Petitioners ask for a construction

of the statute which will give it effect and life, rather than

one which would defeat its purpose, and destroy it. This

Court may decided this question although the Court of

Appeals did not. Liberty Oil Co. v. Condon, National Bank,

260 U.S. 235.

—~37-—

Second Proposition

The Court of Appeals erred in holding that the decision

of the Supreme Court of Oklahoma in the case of Parnacher

et al. v. Mount, 207 Okla. 275, 248 P.2d 1021, was res judicata

and conclusive on petitioners as to the issue in this case as to

whether the County Judge of Garvin County, Oklahoma, had

jurisdiction to approve the will and as to whether the will

is void and ineffective as to restricted property.

(Specifications 1, 2, 6)

The admission to probate of the will, and direction that

the defendant herein be appointed executor without bond

in the State Court (R. 86) did not prevent this suit, and

the Federal Court had jurisdiction of this case. Armstrong

v. Letty, 84 Okla. 205, 209 Pac. 168; Lauderdale v. Tookolo,

114 Okla. 187, 245 Pac. 587; Letts v. Letts, 73 Okla. 313,

176 Pac. 234; Ferguson v. Patterson (10 Cir.), 191 F.2d 584;

Coats v. Riley, 154 Okla. 291, 7 P.2d 644; Phillips v. Smith,

186 Okla. 636, 100 P.2d 249; Anglin v. Patterson, 121 Okla.

106, 248 Pac. 632; Courtney v. Daniel, 124 Okla. 46, 253 Pac.

990; Kolb v. Ball, 101 Okla. 100, 223 Pac. 660. The restricted

property is not subject to administration in the absence of

a valid will thereof. Kolb v. Ball, supra; Armstrong v.

Letty, supra; Wolfe v. Gills, 96 Okla. 6, 219 Pac. 250;

Cowokochee v. Chapman, 90 Okla. 121, 215 Pac. 759; Bilby

v. Noble, 106 Okla. 302, 234 Pac. 198; March v. Peter, 179

Okla. 207, 64 P.2d 912; Hardridge v. Hardridge, 168 Okla.

7, 31 P.2d 597; Moore v. Jefferson, 190 Okla. 67, 120 P.2d

983; In re Micco’s Estate, 59 F. Supp. 434. Equity may re-

move the cloud on plaintiffs’ property caused by the pur-

ported will. 74 C.J.S., Quieting Title, Sec. 14, page 36,

note 95; 51 C.J. 159, note 7. Any determination in the pro-

—38—

bate proceeding that Mount should be appointed executor

without bond of the estate does not determine right to

possession or title to the property involved in this suit, 33

C.J. 1085, note 53; Kobb v. Ball, supra; Armstrong v. Letty,

supra; In re Way’s Estate, 29 Cal.App.2d 669, 85 P.2d 563;

Bertig v. Higgins, 89 Ark. 70, 115 S.W. 935; Pfister v. John-

son, 13 F. Supp. 662. This suit is not one of the types of

proceedings mentioned in Section 3(a) of the Act of Con-

gress of August 4, 1947 (61 Stat. 732). A federal question

is presented. Cl. 1, Sec. 2, Art. 3, Constitution of the United

States; 28 U.S.C., Sec. 1331; 74 C.JS., Quieting Title, Sec.

62, page 89; Mashunkashey v. Clinton, 11 F. Supp. 456,

457; Tennessee v. Davis, 100 U.S. 257, 25 L. Ed. 648; Starin

v. New York, 115 U.S. 248, 29 L. Ed. 388, 6 Sup. Ct. 28;

Jackson v. Gates Oil Co., 297 Fed. 549; Mudd v. Perry, 25

F.2d 85; Jefferson v. Gypsy Oil Co., 27 F.2d 304; Board

Com’rs Creek County v. Seber, 130 F.2d 663, 667, affirmed,

Board Com’rs Creek County v. Seber, 318 U.S. 705; Roube-

deax v. Quaker Oil ¢ Gas Co., 23 F.2d 277, 280, 281.

Since this suit could have been brought in the District

Court of Pontotoc County, Oklahoma, the proper State

Court of general original jurisdiction, it could be main-

tained, in the Federal Court because of the existence of the

Federal question. Ferguson v. Patterson, 191 F.2d 594,

supra.

If under the law of Oklahoma any purported deter-

mination in the proceeding to probate the will of the ques-

tion, as to whether the will had been properly acknow]-

edged and approved so as to be effective as to restricted

property, would not be res judicata or an estoppel by judg-

30

ment in a suit to quiet title to the restricted property

brought in the proper State Court, it could not have such

effect in this action. Oklahoma Packing Co. v. Oklahoma

Gas and Electric Co., 309 U.S. 4; Coppedge v. Clinton, 72

F.2d 531. Under the law of Oklahoma any such determina-

tion in the proceeding for probate of a will or appointment

of an executor as directed inthe will could not have that:

effect, as under the law of Oklahoma, the County Court,

the court of original probate jurisdicition, does not have

jurisdiction in such proceeding to try and determine the

question. Armstrong v. Letty, supra; Sections 11, 12, Article

7, Constitution of Oklahoma. In the probate proceeding

the Staté District Court and the Supreme Court of the State

had only appellate jurisdiction and did not have jurisdic-

tion to determine any question which could not have tried

in the original trial court, the County Court. Sections 2, 10, *

16, Article 7, Constitution of Oklahoma; In re Barrett’s

Estate, 181 Okla. 262, 72 P.2d 482; In re Hick’s Estate, 189

Okla. 310, 116 P.2d 905; Taliaferro v. Reirdon, 186 Okla.

605, 99 P.2d 494; Perry v. Smith, 132 Okla. 181, 269 Pac. -

1074; Parker v. Lewis, 45 Okla. 807, 147 Pac. 310; Wise v.-

Cutchall, 171 Okla. 60, 41 P.2d 864; In re Wagner’s Estate,

178 Okla. 384, 62 P.2d 1186. Since the Supreme Court of.

Oklahoma in its opinion in Parnacher et al. v. Mount, supra,

approved the holding of the State District Court that the

District Court or the County Court had no jurisdiction in.

that proceeding to determine the question, it had no juris-

diction to conclusively determine the question. Clark. v.

Gray, 204 Okla. 221, 228 P.2d 654; Jones v. Norris, 185 Okla.

125, 90 P.2d 403; 4 C.J.S., Title Appeal and Error, Sec. 42.

Since the Supreme Court of Oklahoma had no jurisdiction

—40——

to conclusively determine any question which could not

have been adjudicated in the trial courts in that proceeding,

any expression of opinion or purported determination of

the point by the Supreme Court of Oklahoma was made

thout jurisdiction and was void. Spencer v. Colbert, 135

Okla. 111, 274 Pac. 646. Since the Supreme Court of Okla-

homa in Parnacher et al. v. Mount, supra, reaffirmed the

rule of Armstrong v. Letty, supra, that there was no

remedy in the trial courts in that proceeding to obtain a

determination of the question as to whether the will had

been effectively approved in accordance with the Act of

Congress, petitioners herein were denied any remedy in

that proceeding as to such question and it would be con-

trary to due process of law for the purported determina-

tion of the point by the Supreme Court of Oklahoma in

‘its opinion to be treated as conclusive in this suit. Brinker-

hoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673.

Clearly under the law of Oklahoma the Appellate

Courts in the probate proceeding had no more jurisdiction

to conclusively determine the question than the original

trial court (County Court) and any judgment or decision

of a point by a court lacks due process of law where the

court exceeds its jurisdiction in deciding the point and

jurisdiction of the subject matter cannot be conferred by

consent, and any such decision is not entitled to protec-

tion under the full faith and credit requirements of the

Federal Constitution and statutes. 50 C.J.S., Judgment,

Section 900, page 530; 16 C.J.S., Constitutional Law, Sec-

tion 625, page 1272; Brinkerhoff-Faris Trust and Savings

Co, v. Hill, 281 U.S. 673; Pennoyer v. Neff, 95 U.S. 714; Scott

N. McNeal, 154 U.S. 34; 49 C.J.S., Judgments, Sec. 19, page

—41—

49; Spencer v. Colbert, supra; In re Philadelphia Rapid

Transit Co. (3rd Cir.), 117 F.2d 730.

Under the law of Oklahoma there can be no final

judgment in a probate proceding which is conclusive as

a determination of the validity of a will as an alienation

of property until the final decree of distribution is rendered

in the probate proceeding, and that has never been done

in the particular probate proceeding which was before the

Supreme Court of Oklahoma in an appeal from an inter-

locutory order in Parnacher v. Mount, supra. Armstrong

v. Letty, supra; (58 Okla. Stats. Ann., Sections 23, 41, 631

632; Constitution of Oklahoma, Sections 12 and 13 of Arti-

cle 7). No such interlocutory order as was affirmed by the

Supreme Court of Oklahoma in Parnacher v. Mount, can

operate as res adjudicata or as an estoppel by judgment, as

it was not a final judgment and the doctrine of res judicata

or estoppel by judgment applies only to final judgments

and not to interlocutory matters. 50 C.J.S., Judgments, Sec-

tion 620, page 43; Crayne v. Crayne, 54 Nev. 205, 13 P.2d

222, 84 ALR. 716; Western Paving Co. v. Board of Com-

missioners of Lincoln County, 183 Okla. 281, 81 P.2d 652;

United States et al. v. United States Smelting, Refining and

Mining Co., 339 U.S. 186.

This suit was not on the same cause of action as was

involved in the proceeding to probate the will as that had

to do only with the question as to whether the will should

be admitted to probate and the defendant appointed execu-

tor without bond as directed therein, and there could be

some unrestricted property upon which the will could

operate if it was void as to restricted property under the

—42—

federal statute. Armstrong v. Letty, supra; Phillips v.

Smith, supra.

When the second suit is upon a different cause of ac-

tion, a former adjudication is conclusive only on the issues

which were litigated in the first suit and which could prop-

erly have been adjudicated therein under the doctrine of

estoppel by judgment and the doctrine of res adjudicata is

not applicable, Troxell v. Del. L. é W. R. Co., 227 U.S. 434;

U. S. v. International Bldg. Co., 97 L. Ed. Advance Sheet

of May 25, 1953, page 738; Uphoff v. Meier, 184 Okla. 378, 87

P.2d 960; In re Assessment of First National Bank of Chick-

asha, 93 Okla. 233, 220 Pac. 909, 57 A.L.R. 890.

In the case of In re Assessment of First National Bank

of Chickasha, 93 Okla. 233, 220 Pac. 909, 57 A.L.R. 890,

supra, the Supreme Court of Oklahoma decided certain

points included in the syllabus by the Court in the case of

In re Assessment of First National Bank of Chickasha, 58

Okla. 508, 160 Pac. 469, were not conclusive in the second

proceeding and held:

“The conclusiveness of a judgment extends only to

the question directly in issue, and not to any incidental

or collateral matter, though it may have arisen and

been passed upon.

“A judgment is conclusive by way of estoppel only .

as to those facts which were necessarily within the

issues, and without proof of which the judgment could

not have been rendered.”

So the fact that the point in question was expressed in

the official syllabus of the Supreme Court of Oklahoma in

the will contest proceeding makes no difference.

}

—3—

The decision of the Supreme Court of Oklahoma is

not the law of this case. Fidelity and Deposit Co. of Mary-

land v. Port. of Seattle, 9th Cir., 106 F.2d 777, 781. It is not

binding authority. 35 C.J.S., Fed. Courts, Section 187, page

1277.

In Oklahoma there is a statute (12 Okla. Stats. Ann.

Section 977) which directs that a syllabus of the points of

law decided by the Supreme Court in a case be prepared

by the Court, but regardless of such statute, the matter in-

cluded in the first paragraph of the syllabus by the Court

in Parnacher v. Mount, supra, could have no more force

than dictum because that was not a triable issue in that

proceeding and under such a statute the official syllabus

must be read in the light of the facts and issues of the case.

Williamson Heater Co. v. Radich, 120 Ohio St. 124, 190 NE.

403; Perkins v. Benguet Consol. Mining Co., 342 U.S. 437,

442.

In the late case of Midwestern Insurance Co. v. Cathey,

262 P.2d 434, the Supreme Court of Oklahoma ruled that

part of the matter in the official syllabus in the case of

Great American Indemnity Co. v. Deatherage, 175 Okla.

28, 52 P.2d 827, was dictum and refused to follow it on that

ground.

If the Supreme Court of Oklahoma in its decision in

Parnacher v. Mount, supra, had intended to make the pur-

ported determination of the point in the first paragraph of

the syllabus of the Court conclusive as to the issues in this

case, it would have been necessary that the following cases

be overruled: Armstrong v. Letty, 85 Okla. 205, 209 Pac.

168; Lauderdale v. Tookolo, 114 Okla. 187, 245 Pac. 587;

—44—

Letts v. Letts, 73 Okla. 313, 176 Pac. 234; Phillips v. Smith,

186 Okla. 636, 100 P.2d 249; Anglin v. Patterson, 121 Okia.

106, 248 Pac. 632; Battiest v. Wolf, 97 Okla. 212, 223 Pac.

661; Coats v. Riley, 154 Okla. 291, 7 P.2d 644; Williford v.

Davis, 106 Okla. 208, 232 Pac. 828, (which was affirmed by

the Supreme Court of the United States in Davis v. Willi-

ford, 271 U.S. 484, 46 Sup. Ct. 547, 70 L. Ed. 1048); Kolb v.

Ball, 107 Okla. 100, 223 Pac. 660; In re Allen’s Will, 44

Okla. 392, 144 Pac. 1053; Courtney v. Daniel, 124 Okla. 46,

253 Pac. 990; Brock v. Keifer, 59 Okla. 5, 157 Pac. 88; Hill

v. Buckholts, 75 Okla. 196, 183 Pac. 42; Mantz v. Gill, 147

Okla. 199, 296 Pac. 411; Ward v. Cook, 152 Okla. 234, 3 P.2d

728; Crawford v. LeFevre, 177 Okla. 508, 61 P.2d 196; and,

also several others. But instead of doing that the Supreme

Court of Oklahoma in Parnacher v. Mount, supra, quoted

with approval from Armstrong v. Letty to the effect that

the matter was not within the purview of the jurisdiction

of the trial court in that proceeding.

In Lauderdale v. Tookolo, supra, a disinherited heir

had contested the probate of the will on specific ground

that it had not been properly acknowledged and approved

as required by the Federal Statute and the point had been

decided against the heir in the probate proceeding and

later in the suit brought by the heir to quiet title, it was

held that there had been no conclusive determination of

the question in the probate proceeding. In the case of

Phillips v. Smith, supra, the State District Court denied

probate of a will of a full-blood Indian on the ground that

it was void under the federal statute and the Supreme

Court of Oklahoma reversed the judgment and directed

that the will be admitted to probate and held that the will

—45.—

could not be denied probate on that ground either in whole

or in part and that has been the settled rule in the State

Courts of Oklahoma since the decision in Armstrong v.

Letty, supra, in 1922, and the Supreme Court of Oklahoma

again ruled in Parnacher v. Mount, supra, by quoting to

that effect from Armstrong v. Letty, that the question in-

volved could not have been tried or adjudicated in that

proceeding for lack of jurisdiction.

How then is it possible for the expressien of opinion

or purported determination of the point by the Supreme

Court of Oklahoma, which only had appellate jurisdiction

in that matter, under the law of Oklahoma, to be res judi-

cata?

The applicable rule is stated in 50 C.J.S., Title Judg-

ments, Sec. 731, page 222, as follows:

“A judgment is not conclusive on matters which

were beyond the jurisdiction of the court and which

' by reason of nature of the case could not have been

adjudicated.”

The decision in United States v. Ash Sheep Co., 250

F.2d 592, which was affirmed by this Court in Ash Sheep Co.

v. U. S., 252 U.S. 159, held that this is the rule although in

the first action the Court expresses an opinion as to the

merits of the question or issue which could not have been

conclusively adjudicated therein.

The same holding is made in Wyman v. Bowman (8th

Cir.), 127 Fed. 257, 62 C.C.A. 189, with reference to a previ-

ous decision of the Supreme Court of Iowa. See also, Oliver

v. Cunningham, 7 Fed. 689. In this case the Court of Appeals

has misconstrued the decision of the Supreme Court of

~44—

Oklahoma in Parnacher v. Mount, and has erroneously ap-

plied as authority for its decision that the matter involved

is res adjudicata by reason of the decision of the Supreme

Court of Oklahoma the decision of this Court in Angel v.

Bullington.

Another reason why the decision of the Supreme

Court of Oklahoma in Parnacher v. Mount, supra, is not

conclusive of the issues in this case results from the fact

that the plaintiffs in this case are all restricted Indian

heirs under the Act of Congress of August 4, 1947, 61 Stat.

732, and their title to the restricted property involved is

subject to the restrictions upon alienation imposed by

Section 1 of the Act of August 4, 1947, for they cannot be

divested of such title by any judgment of a State Court in

a proceeding to which the United States is not a party, or

which Congress has not consented shall be conclusive with-

out the United States being made a party thereto. Arm-

strong v. Letty supra. Section 3(a) of such Act of Congress

says that: “The State Courts of Oklahoma shall have ex-

clusive jurisdiction * * * of all proceedings to administer

estates or to probate the wills of deceased Indians of the

Five Civilized Tribes”, but this suit is not a proceeding

to administer an estate or to probate a will and Section

3(b) of such Act of Congress provides that the United

States shall not be deened to be a necessary or an indis-

pensable party to any proceeding of which the State Courts

are given exclusive jurisdiction by Section 3(a), and that:

“The final judgment rendered in any such action or

proceeding shall bind the United States and the parties

thereto to the same extent as though no Indian prop-

erty orf question were involved.”

————————————

1

Provided that a certain notice is served upon the Super-

intendent for the Five Civilized Tribes.

That language differs from the language used in Sec-

tion 3 of the Act of Congress of April 12, 1926, 44 Stat. 239,

which stated what would be the effect of a suit in which

the notice therein provided for was served as therein di-

rected as follows:

“The proceedings and judgment in said cause shall

bind the United States and the parties thereto, to the

same extent as though no Indian land or question were

involved.”

In such a suit as is therein referred to if the notice

provided for is not served the proceedings and judgments

in the case do not have that effect and are not binding on

either the Government or the Indian. United States v. Hel-

lard, 322 U.S. 363; Burgess v. Bosen, 31 F. Supp. 352; U. S.

v. Fuston, 143 F.2d 76; Neal v. Travelers Insurance Co., 188

Okla. 131, 106 P.2d 811. It therefore appears that Congress

did not go as far in its provision as to the effect of proceed-

ings in a probate proceeding in the 1947 Act, if the notice

provided for therein be served as had been provided for

the effect of giving of the notice provided for in the 1926

Act, and that it was clearly the intention of Congress by

the language in the 1947 Act to the effect that only the final

judgment in such a proceeding as was therein referred to

should be binding to the same extent as though no Indian

property or question were involved to recognize and adopt

as the law the rule of Armstrong v. Letty, supra, that by

only the final judgment in a probate proceeding (the de-

cree of distribution) can it possibly be conclusively de-

—48—

termined that a will is valid and effective as an alienation

of restricted Indian land.

It is therefore submitted that the questions involved

herein are sufficient to justify this Court in granting cer-

tiorari in this case.

Respectfully submitted,

; James W. Bounns,

Hugo, Oklahoma, .

Counsel for Petitioners.

Of Counsel:

Turner M. Kina,

Cartoss WADLINGTON,

Ada, Oklahoma.

PAGE

i Point A. No reason for granting Writ of Ceritorari

is shown.

- (1) The decision of the Court of Appeals is not in

conflict with applicable state court decisions.

(2) The decision of the Court of Appeals is not in

conflict with applicable decisions of this

Court.

(3) The decision of the Supreme Court of Okla-

homa has not deprived petitioners of any

property or right without due process of law;

they therein had a full hearing, their day in

court, and a chance to win their case... 5

Point B. Whether or not the State Court’s decision

is binding on the United States is not an issue here.

The United States is not complaining

apie

INDEX CONTINUED ’ PAGE

AUTHORITIES CITED

Angel v. Bullington, 330 U.S. 183, 67 Sup. Ct. 657,

91 L. Ed. 832 6-7, 8, 11, 16

Armstrong v. Letty, 85 Okla. 208, 209 Pac. 168 __11,12

Ash Sheep Co. v. United States, 252 U.S. 159, 64 L.

Ed. 507 8,9

Bacon v. Texas, 163 U.S. 207, 16 Sup. Ct. 1023, 41

L. Ed. 832 12,13 .

Baltimore, S. S. Co. v. Phillips, 274 US. 316, 71

. L. Ed. 1060, 47 Sup. Ct. 600 8, 12

Bristow Battery Co. v. Board of Commissioners, 37

F.2d 504, 507 15

Central Land Company v. Laidley, 159 U.S. 103, 112, .

16 Sup. Ct. 80, 83; 40 L. Ed. 91 15

Frost et al. v. Bankers Commercial Corp., 194 F.2d

505 16

Homer v. McCurtain, 40 Okla. 406, 138 Pac. 807 _.._ 11

Lanham v. Howell, 203 F.2d 361 16

Parnacher v. Mount, 207 Okla. 275, 248 P.2d 1021,

1022 _.....4, 6, 10, 11, 12, 14-15, 17

Patterson v. Colorado, 205 U.S. 454, 27 Sup. Ct. 556,

51 L. Ed. 879 _....12-13

Troxell v. Del. L. & W. R. Co., 227 U.S. 434, 57 L. Ed.

586 8, 16

Williamson v. Columbia Gas & Electric Corp., 186

F.2d 464-467 16

Oklahoma Statutes, Title 58, Sections 1, 7, and 632 10

Section 23 of the Act of Congress of April 26, 1906

(94 Siat. 187), as amended by Séetion 8 of the Act"

* of May 27, 1908-(35 Stat. 312): "3,10

Riles of the Supreme Court, Rule 38... 6.

No. 525

Supreme Court of the United States

October TerM, 1953

NoONLES PARNACHER, DeveT PARNACHER,

NANNIE PARNACHER now JOHNSON,

and Sarna Scort,

Petitioners,

VERSUS

Houston B. Mount,

Respondent.

The District Court did not write an opinion; its find-

ings of fact and conclusions of law and judgment appear

in the transcript of the record, at pages 27 to 31. The

opinion of the United States Court of Appeals of the Tenth

Circuit appears in the transcript of the record at pages 93

to 100, and is now reported in 207 F.2d 788 in the advance

sheets.

STATEMENT OF THE CASE

The statement of the case contained in petitioners’

supporting brief, pages 25 to 27, while substantially cor-

_ rect, so far as it goes, is not concise or complete, and refers

sea ise

generally to matters set out in the petition for the Writ

of Certiorari. It therefore appears advisable to here set

out a more complete and concise statement of the case.

The land described in the complaint filed by petition-

ers in the United States District Court for the Eastern

District of Oklahoma (R. 1-14) was, by the Choctaw and

Chickasaw Nations patented to Liesiny McLean, the same

person as Liesiny Walton, as a part of her homestead al-

lotment as a full-blood member of the Chickasaw Tribe of

Indians (R. 9) and said land was restricted and tax ex-

empt in her hands. On August 28, 1945, the said Liesiny

Walton executed a will (R. 12) by the terms of which she

bequeathed to her three children and to her granddaughter

the sum of $5.00 each, and she devised and bequeathed

the rest and residue of her property to Houston B. Mount,

the respondent herein. On the same day, the said Liesiny

Walton, together with two witnesses, Thomas Puller and

Richard F. Colbert, and-C. L. McArthur, her attorney, took

said will to Moss Wimbish, the County Judge of Pontotoc

County, at Ada; Oklahoma, and he was asked to approve

the will. She appeared not to be able to talk English (R.

42) and she was questioned and made answers through

the two interpreters who were also subscribing witnesses

to the will (R. 45-46). Judge Wimbish, the County Judge

of Pontotoc County, Oklahoma, “declined to approve” the

will (R. 42) and the parties left his office.

Thereafter, on September 18, 1945 (R. 47), at the in-

stance and request of Liesiny Walton (R. 55) the said

C. L. McArthur took her and the two subscribing witnesses

' and interpreters to Pauls Valley, Oklahoma, before Honor-

able Sam Goodwin, the County Judge of Garvin County,

Oklahoma. He was advised that the County Judge of

Pontotoc County had refused to approve the will (R. 48)

and for that reason he conducted the examination in more

detail than he ordinarily would have done. After full

examination of testatrix, he approved the will (R. 47-51)

and executed the certificate (R. 13-14) attached to the

will, showing the acknowledgment of said will by Liesiny

Walton before him and his approval thereof.

On or about February 12, 1949, the said Liesiny Wal-

ton died, a resident of Pontotoc County, owning said lands

allotted to her as a part of her homestead allotment (R.

28). Thereafter, Houston B. Mount, the person named in

said will as executor and principal devisee, offered said

will for probate in the County Court of Pontotoc County,

Oklahoma. Upon contest by the three children and the

granddaughter of Liesiny Walton, the County Court re-

fused to admit the will to probate. On appeal from the

order and judgment of the County Court to the District

Court, the said will was ordered admitted to probate by

said District Court. From said decision, the petitioners

herein appealed to the Supreme Court of the State of

Oklahoma, and said judgment of the District Court of

Pontotoc County, Oklahoma, was affirmed.

In all said proceeding in the State Courts, the peti-

tioners insisted that said State Courts should hold the will

void because not properly approved in accordance with the

provisions of Section 23 of the Act of Congress of April

26, 1906 (34 Stat. 137), as amended by Section 8 of the

Act of May 27, 1908 (35 Stat. 312), particularly because

wim soe

the will was approved by the County Judge of Garvin

County after the County Judge of Pontotoc County had

refused to approve it. This position, taken by petitioners,

is shown in this record by their exception to Finding of

Fact VII (R. 83-84) and by Conclusion of Law VI by the

District Court of Pontotoc County, Oklahoma (R. 85-86)

and by their statement at page 14 in their Petition for Writ

of Certiorari filed herein, wherein they state: “In the ap-

peal in the Supreme Court of Oklahoma, Petitioners did

assert that the will was void as to restricted property, and

that it should then be declared to be void as to restricted

property, because not properly approved in accordance

with the Act of Congress.” Presumably, by reason of this

insistance by petitioners, the Supreme Court of Oklahoma

did pass on this question and the first paragraph of the

syllabus by the Court is as follows:

“1. See. 23, Act of Congress of April 26, 1906, as

3 led. by of May 27, 1908, 35 Stat. 312, pro-

_ .Viding that the will of a fullblood Indian, bequeath-

_ ing restricted real estate, shall be invalid if it disin-

herits children, unless acknowledged before and ap-

proved by ‘a Judge of a County Court of the State of

Oklahoma,’ does not specify what County Judge shall

have such authority, and any County Judge of Okla-

homa may approve such will, regardless of failure to

approve by any other County Judge to whom pre-

viously submitted.”

—Parnacher v. Mount, 207 Okla. 275, 248 P.2d

1021-1022, decided March 25, 1952.

Thereafter, on April 17, 1952 (R. 9), the petitioners

herein as plaintiffs, filed this suit in the United States

District Court for the Eastern District of Oklahoma (R.

1-14). After trial of the issues, the trial court made find-

ings of fact and conclusions of law (R. 27-30) and rendered

judgment in favor of the defendant, respondent herein

(R. 30-31).

From that judgment, the plaintiffs (petitioners) ap-

pealed to the United States Court of Appeals, Tenth Cir-

cuit, and said Court of Appeals, on October 30, 1953, af-

firmed the judgment of the District Court (R. 93-100),

and said petitioners have now filed their Petition for Writ

of Certiorari to review said opinion and judgment.

Summary of Argument

Point A. No reason for granting Writ of Certiorari is

shown.

(1) The decision of the Court of Appeals is not in con-

flict with applicable state court decisions.

(2) The decision of the Court of Appeals is not in con-

flict with applicable decisions of this Court.

(3) The decision of the Supreme Court of Oklahoma

has not deprived petitioners of any property or

right without due process of law; they therein had

a full hearing, their day in court, and a chance to

win their case.

Point B. Whether or not the State Court’s decision is

binding on the United States is not an issue here. The United

States is not complaining.

cee aed

Point A

The petitioners have not, either in their Petition for

Writ of Certiorari or in their brief in support thereof set

up any sound reason for granting the Writ. Certainly they

have not met the test set up in Section 5 of Rule 38 of this

Court. We think that the statements in the Petition for

the Writ, at pages 2 and 3 of said petition, under the sub-

heading “Jurisdiction” amounts to an admission that they

are unable to point out any “special and important reason”

why the Writ should be granted.

Point A-l

Their “claim that in its decision, the Court of Appeals

has decided an important question of Oklahoma law in

a way probably in conflict with applicable State Court

decisions,” is not borne out by their petition, their brief,

nor the record. The Court of Appeals decided no question

of Oklahoma law; it simply accepted the decision of the

Oklahoma Supreme Court in the case of Parnacher v.

Mount, 207 Okla. 275, 248 P.2d 1021, as a final adjudication

of the issue raised by the parties. No appeal was taken to

the Supreme Court of the United States to review that de-

cision, and as pointed out by the Court of Appeals in its

opinion in this case, no court other than the Supreme Court

of the United States, on appeal or Certiorari, has jurisdic-

tion to review, vacate, or overrule such judgment. This

statement of law is abundantly supported by the decisions

of this Court. In the case of Angel v. Bullington, 330 U.S.

183, 67 Sup. Ct. 657, 91 L. Ed. 832, where a similar situation

was involved, this Court said:

ones cme

“Since it was open for Bullington to come here to

seek reversal of the decision of the North Carolina

Supreme Court shutting him out of the North Carolina

courts and he chose not to do so, the decision of the

North Carolina Supreme Court concluded an adjudica-

tion of a federal question even though it was not

couched in those terms. For purposes of litigating the

issues in controversy in the North Carolina action, the

North Carolina Supreme Court was an intermediate

tribunal. If a litigant chooses not to continue to assert

his rights after an intermediate tribunal has decided

against him, he has concluded his litigation as effec-

tively as though he had proceeded through the highest

tribunal available to him. An adjudication of an issue

implies that a man had a chance to win his case. The

chance was necessarily afforded by the North Carolina

litigation. It was in process of determination when

the Supreme Court of North Carolina decided it

against him. He forewent his right to have a higher

court, this Court, enabled him to win his chance by

holding that he was right and that the North Carolina

Supreme Court was wrong. He cannot begin all over

again in an action involving the same issues before

another forum in the same State.”

Point A-2

The reasons relied upon for issuance of Writ set out

at pages 19 to 21 of Petition for the Writ filed herein, like-

wise fail to show any special and important reason for

granting the Writ. At page 2 of their Petition, and also at

page 20 under their reason No. 4, petitioners state that the

decision of the Court of Appeals “is probably in conflict

with applicable decisions of this Court” as to the applica-

tion of the doctrine of res judicata and they cite three

—

cases apparently claimed by them to be in conflict with

the decision of the Court of Appeals in this case.

We submit that the case of Angel v. Bullington, 330

US. 183, 67 Sup. Ct. 657, 91 L. Ed. 832, is not in conflict

with the decision of the Court of Appeals in this case, but

on the contrary, fully supports it as shown by the quotation

from that case set out herein above.

The case of Troxell v. Del., L. & W. R. Co., 227 US.

434, 57 L. Ed. 586, is clearly distinguishable and not in

conflict with the decision of the Court of Appeals in this

ease. The first case there referred to was tried under the

state law of Pennsylvania under which recovery could

not be had by reason of negligence of a fellow servant.

The second case was brought under the Federal Employers’

Liability Act under which negligence of a fellow servant

would justify recovery. In the second case, it was held that

all elements of damage had been adjudicated in the first

case except the negligence of the fellow servant, which

could not have been adjudicated in the first case. See

Baltimore, S. S. Co. v. Phillips, 274 U.S. 316, 71 L. Ed. 1069,

47 Sup. Ct. 600.

The case of Ash Sheep Co. v. United States, 252 US.

159, 64 L. Ed. 507, involved two cases in the United States

District Court of Montana. The: first was an equitable

action to enjoin trespassing on certain lands. The second

case was an action at law to recover a statutory penalty

for such trespass. Both cases were brought to this Court

by appeal and were argued together and decided together,

and this Court held that the statutory penalty could not

have been récovered in the equity case and consequently

aw 9

the decree in the equity case could not be res judicata as

to the said statutory penalty.

There is no similarity between that case and the case

at bar. There dre at least two definitely distinguishing

features. First, the Ash Sheep Company cases were both

appealed to this Court. The case of Parnacher v. Mount,

decided in the Supreme Court of Oklahoma, was not ap-

pealed to this Court, but the decision of the Oklahoma Su-

preme Court was allowed to become final.

Second, in the Ash Sheep Company equity case, the

lower courts held that the statutory penalty could not be

recovered in the equity case. This Court concurred in

that view and it necessarily follows that the equity case

could not constitute res judicata as to the law case to re-

cover the statutory penalty. If the Supreme Court of Ok-

lahoma, in the Parnacher case, had held that it was with-

out jurisdiction to determine the validity of the approval of

the will, there would then have been a situation similar

to the situation in the Ash Sheep Company case, but the

Supreme Court of Oklahoma held that it could, and it did

in unmistakable language, hold that the approval of the

will by the County Judge of Garvin County, Oklahoma,

was valid, and that judgment became final when not ap-

pealed to this Court.

It is wholly unavailing-for petitioners to contend that

the Supreme Court of Oklahoma was ‘without jurisdiction

to render the decision that it did render. All of the same

parties were before the Court and petitioners were urging

the Court to hold the approval of the will by the County

Judge of Garvin County to be void. It would be quite an

anomaly to hold that the Court had jurisdiction to hold

the approval void but did not have jurisdiction to hold it

valid.

The substance of petitioners’ argument is that the

decision of the Supreme Court of Oklahoma, in the case of

Parnacher v. Mount, supra, cannot be res judicata because

the Supreme Court of Oklahoma was without jurisdiction

to determine that the approval of the will of Liesiny Wal-

ton by the County Judge of Garvin County, Oklahoma, was

a valid approval under the provisions of Section 23, of the

Act of Congress of April 26, 1906 (34 Stat. 137), as amended

by Section 8 of the Act of May 27, 1908 (35 Stat. 312).

There is no statute, either state or federal, which deprives

the County Court of Oklahoma of authority to determine

that question under its general probate jurisdiction granted

to it by Sections 12 and 13 of Article 7 of the Constitution

of the State of Oklahoma, and implemented by the various

acts of the State Legislature, 1951 Oklahoma Statutes,

Title 58, Sections 1, 7, and 632, and it is conceded by pe-

titioners that the District Courts and Supreme Court of

Oklahoma have appellate jurisdiction over all such deci-

sions of the County Court.

A probate proceeding under the laws of Oklahoma, as

under the laws of other states of the Union, consists of a

number of steps from the filing of the petition for adminis-

tration or to probate a will, on to the final settlement of

the estate, including any necessary construction of the

will and the determination of heirs or devisees, and dis-

tribution of the estate. All of the steps are merely part

of the same probate proceeding of which the County Court

—11—

has original jurisdiction, and the District and Supreme

Courts of the State have appellate jurisdiction. The case of

Armstrong v. Letty, 85 Okla. 205, 209 Pac. 168, and the

cases following it, hold that the determination of whether

or not the will of a full-blood Indian has been properly

acknowledged and approved as required by the said acts

of Congress is not a matter to be determined on the hearing

of the petition to probate the will. The Supreme Court of

Oklahoma had formerly held to the opposite view in the

case of Homer v. McCurtain, 40 Okla. 406, 138 Pac. 807,

which was overruled by Armstrong v. Letty, supra. There

can be no doubt that the Supreme Court of Oklahoma was

clothed with ample jurisdiction to make each of said rul-

ings, and in the case of Parnacher v. Mount, likewise pos-

sessed jurisdiction to follow either line of decisions. Inas-

much as it is claimed that the construction of a federal

statute is involved, petitioners could have appealed from

the decision of the Supreme Court of Oklahoma to the

Supreme Court of the United States, but they did not elect

to do so and the decision of the Supreme Court of Okla-

homa became final. Angel v. Bullington, supra.

Certainly in this proceeding, it cannot be said that the

Oklahoma Supreme Court lacked jurisdiction because its

decision on this point was not in harmony with former

decisions of the same Court. It may be that the Oklahoma

Supreme Court was convinced that it should return to its

ruling in the case of Homer v. McCurtain, supra, or it may

be that petitioners here—plaintiffs there—convinced the

Court that the facts in this case created the necessity to

make some exception to the rule laid down in Armstrong

ities

v. Letty, and that the rights of the interested parties would

be best protected by the determination at that stage of

the proceeding, as to whether or not the will under con-

sideration was or was not void by reason of the manner

in which it was acknowledged and approved. Be that as it

may, the Supreme Court of Oklahoma had jurisdiction of

the subject matter, and of all the parties to that proceed-

ing, and they are the same parties as in this proceeding.

We do not think that it is necessary, nor would it be

appropriate at this time and place for us to take up time

and space in defending or explaining the decision of the

Supreme Court of Oklahoma in Parnacher v. Mount, 207

Okla. 275, 248 P.2d 1021, for it is immaterial for the pur-

poses of res judicata whether or not the decision of the

Oklahoma Supreme Court was erroneous. Angel v. Bulling-

ton, supra. It has been consistently held by this Court

that: “A judgment merely voidable because based upon

an erroneous view of the law is not open to collateral

attack, but can be corrected only by a direct review and

not by bringing another action upon the same cause.”

Baltimore, S. S. Co. v. Phillips, 274 U.S. 316, 71 L. Ed. 1960,

47 Sup. Ct. 600; see also Patterson v. Colorado, 205 U.S.

454, 27 Sup. Ct. 556, 51 L. Ed. 879; Bacon v. Texas, 163 U.S.

207, 16 Sup. Ct. 1032, 41 L. Ed. 832.

“Even if it be true, as the plaintiff in error says,

that the Supreme Court of Colorado departed from

earlier and well-established precedents to meet the

exigencies of this case, whatever might be thought

of the justice or wisdom of such a step, the Constitu-

tion of the United States is not infringed. It is un-

necessary to lay down an absolute rule beyond the

—

sini

possibility of exception. Exceptions have been held

to exist. But, in general, the decision of a court upon

a question of law, however wrong and however con-

trary to previous decisions, is not an infraction of the

14th Amendment merely because it is wrong or be-

cause earlier decisions are reversed.”

—Patterson v. Colorado, supra.

“This court has no jurisdiction to review a judg-

ment of a state court made under precisely the same

circumstances, although such state court thereby de-

cided that the state legislation was void which it had

prior thereto held to be valid. * * * In other words,

we have no jurisdiction, because a state court changes

its views in regard to the proper construction of its

state statute, although the effect of such judgment

may be to impair the value of what the state court

had before that held to be a valid contract.”

—Bacon v. Texas, supra.

Point A-3

The decision of the Court of Appeals has not deprived

petitioners of property without due process of law as sug-

gested by petitioners at page 20 of the Petition for the

Writ. The record in this case shows that the parties have

been fully heard, as to the validity of the approval of the

will of Liesiny Walton by the County Judge of Garvin

County, Oklahoma, in the regular course of judicial pro-

ceedings in the County Court, the District, and the Su-

preme Court of the State of Oklahoma.

Although the judgment of the County Court of Ponto-

toc County, Oklahoma, is not shown wherein he passed

on this question, it is shown in this record that petitioners,

—1l4—

in their contest, did raise the question (R. 77-79). It is

shown by this record that this question was fully considered

by the District Court of Pontotoc County, Oklahoma, by

Finding of Fact VII (R. 83-84) and by Conclusion of Law

VI (R. 85-86) both of which were excepted to by con-

testants—petitioners herein.

Petitioners, in their Petition for the Writ of Certiorari

filed herein, at page 14 thereof, state that in the appeal in

the Supreme Court of Oklahoma they “did assert that the

will was void as to restricted property, and that it should

then be declared to be void as to the restricted property,

because not properly approved in accordance with the

Act of Congress” (Emphasis ours). The reported decision .

of the Oklahoma Supreme Court, in Parnacher v. Mount,

207 Okla. 275, 248 P.2d 1021, shows conclusively that this

question was therein fully litigated and. carefully con-

sidered, and we believe its opinion indicates that it con-

sidered this question of prime importance, as it said:

“Contestants submit five propositions in support of

their contention that the will is invalid and should not

have been admitted to probate. We shall first con-

sider the contention that the will is void as to re-

stricted property under Section 23 of the Act of April

26, 1906, 34 Stat. 137, 145, as amended by Section 8

of the Act of May 27, 1908, 35 Stat. 312, 315, which

provides: * * *.”

There it quotes the Act of Congress and carefully

analyzes it. In the body of the opinion, it says:

“We think the authority given to County Judges by

the above Act is not such as to render the action of the

oii aie

first one to whom a will is submitted final and binding

upon all other County Judges in the State. * * *

“The will before us appears to have been properly

executed, attested, and acknowledged before, casted

proved by, a County Judge of Oklahoma.”

Its conclusion on this point is summed up in the first

section of the syllabus by the Court as fully set out above

in our statement of the case.

It thus definitely and unmistakably decides the exact

question which petitioners are now asking this Court to

decide. We think it decided the question correctly and

that the reasoning by which it reached the decision stated

in its first syllabus is sound, but regardless of whether the

decision is correct or erroneous, it became final when not

appealed to this Court, and petitioners have not been de-

prived of any property or right without due process of

law.

“When the parties have been fully heard, in the

regular course of judicial proceedings, an erroneous

decision of a state court does not deprive the unsuc-

cessful party of his property, without due process of

law, within the 14th Amendment of the Constitution

of the United States.”

—Central Land Company v. Laidley, 159 U.S.

103, 112; 16 Sup. Ct. 80, 83; 40 L. Ed. 91;

Bristow Battery Co. v. Board of Commissioners,

' $37 F.2d 504, 507. :

. The decision of the Supreme Court of Oklahoma in

the case of Parnacher v. Mount, supra, clearly constitutes

res judicata as to the question of the validity of the ap-

itinn

proval of Liesiny Walton’s will by the County Judge of

Garvin County, Oklahoma, as exactly the same facts are

involved and the same parties are parties to both pro-

ceedings. Frost et al. v. Bankers Commercial Corp., 194

F.2d 505; Williamson v. Columbia Gas & Electric Corp.,

186 F.2d 464-467; Lanham v. Howell, 203 F.2d 361; Angel

v. Bullington, 330 U.S. 183-192, 67 Sup. Ct. 657, 91 L. Ed.

832; Trowell v. Del., L. & W. R. Co., 227 US. 434, 57 L. Ed.

586, supra.

Point B

Petitioners, at pages 46 and 47 of their brief in sup-

port of the Petition for the Writ, advance a highly technical

theory as to whether or not the United States is bound by

the judgment in the State Supreme Court, which theory

has not been heretofore advanced or presented in any of

the courts, either state or federal, wherein the controversy

between these parties has been considered. Even if the

theory could properly be presented for the first time in this

Court, we do not feel that it is relevant or material to the

question now before the Court as to whether or not the

Writ of Certiorari should be granted. The question as to

whether or not the United States is bound by the judg-

ment in the state court or in the federal court has not been

raised, and is not an issue in this case, and the determina-

tion of that question could throw no light on any question

- now before this Court.

The record before this Court does not disclose either

that the Superintendent of the Five Civilized Tribes was

or was not served with notice of the pendency of the pro-

~17—

ceeding to admit the will of Liesiny Walton to probate

and administer her estate, and the statements at pages 46

and 47 of petitioners’ brief might tend to leave the im-

pression that no such notice was served on the Superin-

tendent of the Five Civilized Tribes as provided for in

Section 3-B of the Act of Congress of August 4, 1947, 61

Stat. 731. However, we cannot believe that counsel for

petitioners intend to leave such an impression which would

be entirely misleading and contrary to the real facts as

the record before the Supreme Court of the State of Okla-

homa, in the case of Parnacher v. Mount, supra, showed

such notice in full and the service thereof on the Superin-

tendent of the Five Civilized Tribes.

Ir Is THEREFORE, RESPECTFULLY SuBMiITTeD that this

case is not a proper one for review by Certiorari in this

Court, and that the Petition for Writ of Certiorari should

be denied.