Thompson v. Morgan

Townsend, J. The appellants have filed seven assignments of error, as follows: “(1) The court erred in making the Choctaw and Chickasaw Nations parties to the suit. (2) The court erred in overruling plaintiff's demurrer to and motion to strike out the interplea of the Choctaw and Chickasaw Nations. (3) The court erred in sustaining the demurrers of defendants and Choctaw and Chickasaw Nations to plaintiffs' second amended complaint. , (4) The court erred in sustaining the demurrer of the Choctaw and Chickasaw Nations to-the answer and reply of plaintiffs to the interplea of said nations. (5) The — 421 — court erred in rendering judgment against the plaintiffs in favor of the defendants, (6) The court erred in adjudging possession of the lands sued for to the defendants. (7) The court erred in overruling plaintiffs* motion for a new trial.” 'The appellants admit that no exception was reserved to the action of the court in making the Choctaw and Chickasaw Nations parties to this action, which ruling of the court is made the first assignment of error, but appellants insist that the- second assignment of error covers the same question; as exceptions to the overruling of appellants' demurrer and motion to strike out the interplaa- and answer of said nations were'reserved. The question- of the correctness of the ruling of the court in making said nations parties is clearly presented, for, if they were not proper parties to this action, the court should have sustained the motion of appellants, and have stricken them from the record as parties. The attorneys for said nations state that the court made said nations parties by virtue of the requirements of section 2 of the Curtis Act (§ 57r, Ind. Ter. St. 1899), which is as follows:. “§ 2. That when in the progress of any civil suit, either in law or equity, pending in the United States court in any district in said territory, it shall appear to the court that the property of any tribe is any way affected by the issues being heard, said court is hereby authorized and required to make said tribe a party to said suit by service upon the chief or governor of the tribe, and the suit shall thereafter be conducted and determined as if said tribe had been an original party to said action.” And said attorney says: “We are unable to see how the court below could have taken any other course without violating this section of the law. This proposition argues itself.” But is this second section of the Curtis bill in force in the Chickasaw Nation? It seems to have been assumed by the attorneys for said nations, and the court also, that it is. Section 29 of the Curtis bill, which relates to the ratification of the Atoka agree — 422 — ment, contains also this provision: “And if said agreement as amended be so ratified, the provisions of this act shall then only apply to said tribes where the same do not conflict with the provisions of said agreement; but the provisions of said agreement, if so ratified, shall not, in any manner, affect the provisions of section fourteen of this act, which said amended agreement is. as follows.” Section 29, Curtis Bill (§ 57zl9',. p. 37, Ind. Ter. St. 1899.) It is, therefore, conclusive that the provisions of the Curtis bill are only in force in the Chickasaw Nation where they do not conflict with the provisions of the Atoke agreement. Section 44 of said fell,, and which is part of said agreement, contains the following: “Whenever it shall appear to said court, at. any stage in the hearing of any case, that the tribe'is in any way interested in the subject-matter in controversy, it shall have power to summon in said tribe and make the same a party to the suit and proceed therein in all respects as if such tribe were an original party thereto; but in no case shall suit be instituted against the tribal government without its consent.” Section 44, Curtis Bill, (§ 57z44, p. 43, Ind. Ter. St. 1899). It thus is made plain that the tribes must in some way be interested in the subject-matter in controversy before the court has power to summon in said tribe and make the same a party to the suit. What, therefore, is the subject-matter in controversy in this suit? It is an action of unlawful detainer, as appears from the complaint, and is brought under section 2282, Ind. Ter. St.: “2282. When any person shall willfully and with force hold over any lands, tenements or other possessions after the determination of the time for which they were demised or let to him, or shall lawfully and peaceably obtain possession, but shall hold the same unlawfully and by force, or shall fail or refuse to pay the rent therefore when due, and after demand made in writing for the delivery of possession thereof, by the person having the right to such possession, his agent or attorney, shall refuse to quit such possession, such person shall be deemed guilty of an — 423 — unlawful detainer.” Section 2282, p. 397, Ind. Ter. St. (§ 3348, Mansf. Dig. ) Said statute has been construed by the decisions-of the supreme court of Arkansas as follows: “Unlawful detainer is a statutory remedy for the benefit of landlords against tenants who hold over after the expiration of their term. It is founded on-a breach of contract implied by law, if not. expressed-, and may be maintained either-by the lessor or his heir or assignee, to. whom the la-nd passes.” Johnson vs West, 41 Ark. 535. It can be maintained only where the-relation of landlord and tenant exists. Mason, vs Delancy, 44 Ark. 444; Necklace vs West, 33 Ark. 682; Dortch vs Robinson, 31 Ark. 2961 Section 2282-note, p.. 397, Ind. Ter. St. 1899 (§- 3348 note-, Mansf. Dig.). It thus appears that it can be maintained only where- the- relation of landlord and tenant exists. It is founded on a breach of contract, implied by -law, if not expressed, and- is a statutory remedy for the benefit of landlords against tenants, who hold over after the expiration of their term. Do the Choctaw and Chickasaw Nations occupy the position of landlord in this action? Is there any contract between the defendants and said nations? And if none of these relations exist, how can it be said that these tribes or either of them are interested in the subject matter in controversy? The Atoka agreement has no express provisions authorizing suits for the recovery of possession of lands by the tribes to be instituted, but the Curtis bill authorized actions- to be brought to recover possession only in certain cases, as follows: “That said courts §.re hereby given jurisdiction in their respective districts to try cases against those who may claim to hold as members of a tribe and whose membership is denied by the tribe, but who continue to hold said lands and tenements notwithstanding the objection of the tribe; and if it be found upon trial that the same are held unlawfully against the tribe by those claiming to be members thereof, and the membership ands right are disallowed by the commission to the Five Tribes, or the United States court, and the judgment has become final,then — 424 — said court shall cause the parties charged with unlawfully holding said possessions to be removed from the same and cause the lands and tenements to be restored to the person or persons or nation or tribe of Indians entitled to the possession of.the same.” Section 3, Curtis Bill (§ 57s, p. 28, Ind. Ter. St. 1899). And the manner of instituting such'action is provided for, as follows: “(5) That before any action by any tribe or perosn shall be commenced under section three of this act it shall be the duty of the party bringing the same to notify the adverse party to leave the premises for the possession of which the action is about to be brought, which notice shall be served at -least thirty, days before commencing the action by leaving a written copy with the defendant, or, if .he cannot be found, by leaving the same at his last knpwn place of residence or business with any person occupying the premises, over the age of twelve years, or, if his residence or business address cannot be ascertained, by leaving the same with any person over the age of twelve years upon the premises sought to be recovered and described in said notice; and if there be no person with whom said notice can be left, then by posting same on the premises. (6) That the summons shall not issue in such action until the chief or governor of-the tribe, or person or persons bringing suit in his own behalf, shall have filed a sworn complaint, on behalf of the tribe or himself, with the court, which shall, as near as practicable, describe the premises so detained, and shall set forth a detention without the consent of the person bringing said suit or the tribe, by one whose membership is denied by it; provided, that if the chief or governor refuse or fail to bring suit in behalf of the tribe then any member of the tribe may make complaint and bring said suit.” Sections 5, 6, Curtis Bill (§§ 57u, 57v, p. 29, Ind, Ter. St. 1899.) It would be a fair construction of said Curtis Bill and Atoka agreement to say that by this express' provision, authorizing actions for possession by the tribes in the cases therein provided for only, congress did not intend to authorize — 425 — action for possession in other cases. But, however this may be congress, in § 10 of said Curtis Bill, has provided as follows “And nothing in this act shall take away the right to maintain an action for unlawful and forcible éntry and detainer given by the act of congress passed May second, eighteen hundred and ninety (twenty-sixth United States Statutes, page ninety-five).” Section 10, Curtis.Bill (§ 57z, p. 30, Ind. Ter. St. 1899). Hence the action of unlawful detainer as 'it exists in Arkansas is expressly authorized by the Cyrtis Bill, and, as there is no allegation in the interplea and answer of the Choctaw and Chickasaw Nations ^hat the relation of landlord and tenant exists by contract, either implied by law or expressed, between either the plaintiff or defendants and nations in this action, said nations in our judgment, are not interested in the subject-matter in controversy in this suit; and therefore the court erred in making them parties to the suit, and the demurrer of the plaintiffs to the interplea and answer of said nations, and the motion to strike out the same by the plaintiffs, should have been sustained. The original complaint of plaintiffs has not been brought up in this transcript, but their second amended complaint states a good cause of action in unlawful detainer against the defendants, together with a mass of surplusage in answer to the inter-plea and answer of the Choctaw and Chickasaw Nations, and defendants’ demurrer to said second amended complaint should have been overruled. The answer of defendants, which, 'upon suggestion by them of diminution of the record filed on the 3d day of March, 1900, and which was brought up to this court by certiorari, must have been their answer to the original complaint, which is not before the court; and the second amended complaint, which was filed by leave of the court, and which, in our judgment, states a good cause of action against defendants in unlawful detainer, and to which defendants’ demurrer in our judgment should have been — 426 — overruled, — would leave said second amended complaint without answer, and it was therefore error for the court to render judgment for the defendants. In our judgment, in this action the citizenship of the parties was immaterial. For the errors above set forth, the case is reversed and remanded.