Muskogee Land Co. v. Blackburn

Williams, C. J. (after stating the facts as above). The jurisdiction of this court, as successor of the United States Court of Appeals for the Indian Territory, to review upon a writ of error the judgment of the United States Court for the Western District of Indian Territory, at Wagoner, is derived from the provisions of section 12 of an act of Congress, approved March 3, 1905, (33 Stat. 1081, c. 1479 [U. S. Comp. St. Supp. 1907, p. 208]) entitled “An act making appropriations for the current and contingent expenses of the Indian Department and for fulfilling treaty stipulations with various Indian Tribes for the fiscal year ending June thirtieth, nineteen hundred and six, and for other purposes:” “That hereafter all appeals and writs of error shall be taken from the United States courts in the Indian Territory to the United States Court of Appeals in the Indian Territory, and from the United States Court of Appeals in the Indian Territory to the United States Circuit Court of Appeals for the' Eighth. Circuit in the same manner as is now provided for in cases taken by appeal or writ of error from the circuit courts of the United States to the Circuit Court of Appeals of the United States for the Eighth District.” Accordingly appeals and writs of error to the United States Court of Appeals in the Indian Territory thereafter must be taken' in the manner prescribed in section 6 of an act of Congress of March 3, 1891, and only as therein provided: •“That the Circuit Court of Appeals established by this act shall exercise appellate jurisdiction to review by appeal or writ of error final decisions in the district courts and the existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law.” (26 Stat. 828, c. 517 [U. S. Comp. St. 1901, p. 549.]) An order awarding a new trial is not a final decision. Hume v. Bowie, 148 U. S. 245, 13 Sup. Ct. 582, 37 L. Ed. 438; Lawson v. Moore, 44 Ala. 274; State v. Ross, 34 Ark. 377. See, also, *807 Morgan, v. Thompson, 124 Fed. 204, 59 C. C. A. 672; Brush Electric Co. v. Electric Implement Co., 51 Fed. 557, 2 C. C. A 379, and notes thereto; Salmon v. Mills, 66 Fed. 32, 13 C. C. A. 374, and notes thereto; Carmichael et al. v. City of Texarkana, 116 Fed. 845, 54 C. C. A. 179, 58 L. R. A. 911; Hooven et al. v. John Featherston’s Sons, 111 Fed. 81, 49 C. C. A. 229; Robinson at al. v. Belt et al., 56 Fed. 328, 5 C. C. A. 521; Life Ins. Co. v. Scheffer, 105 U. S. 703, 26 L. Ed. 1110; Houston v. Moore, 3 Wheat. (U. S.) 433, 4 L. Ed. 428; Smith v. Adams, 130 U. S. 168, 9 Sup. Ct. 566, 32 L. Ed. 895; 1 Freeman on Judgments (4th Ed.) § 32-c; 1 Black on Judgments, § 31. In the case of State v. Ross, 34 Ark. 378, the court says: ■ “There was a valid trial and verdict against the defendant in error for murder in the second degree, which verdict the court iu fact set aside for an erroneous reason; and there was no final judgment. We decline to send a mandate to the court below directing it to sentence the prisoner upon the verdict so set aside, because we cannot undertake to say that, if the court had not fallen into the error of setting aside the verdict on the ground stated in the record entry, it might not have granted a new trial on some of the grounds assigned in the motion.” In this case it appears from the record that the defendants, at least the sureties, had no .notice of the contemplated motion on the part of the plaintiffs for the assessment of damages on the supersedeas bond. It certainly would have been the better practice for the plaintiff to have given the defendants, each and all of them, reasonable notice of such intended action. It may have been held that, if the court had finally determined that it had jurisdiction, still within his discretion, on account of the failure to give reasonable notice to said defendants, or for other grounds assigned in the motion for a new trial, might have proceeded, within his discretion, to grant a new trial. .The fact that he assigned a ground for granting it certainly does not make it any more a final judgment. It is not necessary for this court to determine whether or not the court below would have jurisdiction in *808 said matter. The proper way to raise that question is to give the defendants, including the sureties, reasonable notice that it would move for the impaneling of the jury for the assessment of damages, and, if the court then declined to take jurisdiction, and plaintiff has no other adequate remedy of relief, then mandalnus would be its proper course. Life Ins. Co. of N. Y. v. Heirs of Wilson, 8 Pet. (U. S.) 291, 8 L. Ed. 949; Lawson v. Moore, 44 Ala. 274; Higgins v. Brown (decided at this term, and reported in this volume) 94 Pac. 703. The case of Weller v. Western State Bank, 18 Okla. 478, 90 Pac. 877, has no application to this case, as that arose under the laws of the territory of Oklahoma, and section 4733, Wilson’s Rev. & Ann. St. 1903, of Oklahoma, provides: “The Supreme Court may reverse, vacate or modify the judgment of the district court, for errors appearing on the record, and in the reversal of such judgment or order, may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof. The Supreme Court may also reverse, vacate or modify any of the following orders of the district court, or a judge thereof: First, A final order. Second, An order that grants or refuses a continuance; discharges, vacates or modifies a provisional remedy; or grants, refuses, vacates or modifies an injunction; that grants or refuses a new trial; or that confirms or refuses to confirm, the report of a referee; or that sustains or overrules a demurrer. Third, An order that involves the merits of an action, or some part thereof.” It will be observed that under the territory of Oklahoma the Supreme Court of that territory was especially empowered to vacate, modify, or reverse an order refusing or granting a new trial. The writ of error is dismissed. All the Justices concur.