Morrow v. Burney , 2 Indian Terr. 440 ( 1899 )

Thomas, J.

The first error assigned by the appellant is that this was an action for trespass to real estate, and that the United States commissioner did not have jurisdiction to hear and determine it. From the testimony incorporated in the bill of exceptions in this case, we can only conclude that the improvements, for the value of which this action was brought, were placed upon this claim near Fred, in the Chickasaw Nation, by the appellant, Morrow, under an agreement with one Campbell, a Chickasaw citizen who owned the claim, that when he left or abandoned the premises he could remove these improvements, or that Campbell should pay for them. Campbell sold this claim to the plaintiff and appellee, E. S. Burney. Neither Campbell nor Burney, who succeeded Campbell as owner of the claim, paid Morrow for these improvements, and he therefore removed them. If the bill of exceptions contained all of the testimony, the trial court would, doubtless, have directed the jury to return a verdict for the defendant, if it had been requested; and, inasmuch as these improvements were placed upon these premises by Morrow and the witness Frey, under an agreement with the owner of the claim, Campbell, that they could remove them when they left or abandoned the premises, or that he would pay for them, these improvements did not become a part of the real estate, but remained personal property, and the property of Morrow, and for that reason the United States commissioner had jurisdiction, — this being an action for conversion of personal property.

But did the United States court for the Southern district have jurisdiction to try this cause anew, on appeal from the United States commissioner? A verdict and judgment in favor of the defendant was had in the United States commissioner’s court, and the plaintiff, E. S. Burney, appealed to the United States court. In the case of Hardware Co. vs Brittain, 2 Ind. Ter. 242 and in Baldwin vs Farris, 2 Ind. Ter., 438 not yet officially reported, both cases determined by this court, it was held that an appeal would not lie from a judgment of a United States commissioner in the Indian Territory “where the amount of the judgment, exclusive of costs, does not exceed twenty dollars. ” As an appeal did not lie from the judgment of the United States commissioner in this action, the United States court was without jurisdiction, and its judgment is reversed, and the action dismissed. Reversed and dismissed.

Springer, C. J., and Clayton and Townsend. JJ., concur.