Brown v. McNair , 5 Indian Terr. 67 ( 1904 )

TowNsend, J.

Appellants have filed herein five assignments of error. Of these, the first and second may be considered together. They are as follows:

“(1) The court erred in overruling defendant's challenge for cause to the jurors Duke and Adams. (2) The court erred in overruling the defendant's challenge to the juror McCaleb.” Appellants contend that the court erred in overruling defendant's challenge for cause to these jurors because the relation of attorney and client had existed between them and one of the attorneys for appellee. The record clearly shows, however, that the relation had terminated “three or four months ago” in the cases of the jurors Duke and Adams, and in the case of McCaleb “a year or more.” In the absence of any'showing that the jurors ■were unduly biased by their former relation to one of the attorneys in the case, to the prejudice of the parties litigant — and no such state of affairs is disclosed by the record — the court below properly held that these men were qualified to serve as jurors. This court has held in the case of M., K. & T. Ry. Co. vs Elliott, 2 Ind. Ter. 407, 51 S. W. 1067, that, notwithstanding the fact that some of the jurors had had eases against the defendant railway, they were not disqualified for that reason, providing that at the time of the trial of the case their minds were free from prejudice and bias. We see no reason for departing in this instance from the rule there laid down.

Appellants’ third assignment of error is as follows:

“(3) The court erred in allowing the plaintiff to read in evidence to the jury the Cherokee law, to support the allegations of her complaint, to which reading and ruling of the court defendant excepted.” Upon this point appellants contend that: “If the plaintiff wanted to rest her title to the corn sued for upon any Cherokee law, it should have been specially pleaded. -United States Courts in the Indian Territory do not take judicial notice of the local laws of the various tribes of Indians in the Indian Territory. Such laws are placed "on the footing of local laws and customs, and must be pleaded and proven. See Wilson vs Owens, 86 Fed. 571, 30 C. C. A. 257. The courts do not take judicial notice of the laws of the Indian tribes in the Indian Territory, but they must be pleaded and proven before effect can be given to their provisions in a judicial proceeding. See Hockett vs Alston, 110 Fed. 910, 49 C. C. A. 180.” But says appellee: “It is true that the United States Courts in the Indian Territory do not take judicial notice of the local laws of the various tribes of Indians in the Indian Territory, and we are not now asking that this court take judicial knowledge of the Cherokee laws introduced in evidence by plaintiff. The portions of the Cherokee law read to the jury by counsel for plaintiff were offered as evidence, and were proven, and are now matters of record; and we cannot sec why counsel for appellant insists that we desire this court to take judicial knowledge of the Cherokee laws introduced, for they are a matter of record in this case.” The Cherokee laws referred to are article 4, § 518 (descent of property), and article 14, §§ 241, 244 (possession of property), introduced by counsel for appellee; section 667 (on abandoment), and sections 761 and 762 (as to possession of improvements), introduced by counsel for appellants. If these laws were introduced merely as evidence to sustain the allegations of the pleadings, and as showing title to the lands on which the corn in controversy grew, it must be held to be proper evidence. The ownership of the crop in this case depended upon the ownership of the land on which it grew. This is a suit for conversion of corn, and all that was necessarjr for the plaintiff to allege in her complaint, to maintain the action, was that she was the owner of the corn, and that defendants wrongfully converted the same to their own use and benefit, to the damage of plaintiff. An examination of the record discloses the fact that plaintiff’s complaint contained these averments, and defendant’s counsel must have deemed that the complaint was sufficient, as no objection was made to it. In Malcolm vs O’Reilly, 46 N. Y. Super. Ct. 222, the court held that it was unnecessary to state in a complaint for conversion in what manner the plaintiff became the owner of . the property converted, because it is a matter of evidence. In Warren vs Dwyer, 91 Mich. 414, 51 N. W. 1062, it was held that the complaint in a suit for conversion need not show the nature or evidence of the plaintiff's title. The universal rule of pleading applicable to conversion will be found in the text of 26 Am. & Eng. Law, 801, as follows: “The material averments in an action of trover are ownership or possession of the property in the plaintiff, and its wrongful taking or conversion by the defendant. But the declaration need not show the nature or evidence of the plaintiff's title."

Appellants' fourth assignment of error is as follows: “(4) The court erred in overruling defendants' motion at the close of plaintiff's testimony to peremptorily instruct the jury to find for the defendant, for these reasons: (a) Plaintiff had not proved title in herself to said farm as a Cherokee citizen by adoption, (b) The Cherokee law by virtue of which she claimed had not been specially pleaded.” The second point in this assignment of error has already been discussed, and it will not be necessary to notice it further. Appellee, was a white woman who had married a Cherokee citizen. Bhe claims title to the farm upon which grew the corn in controversy in two ways — through her husband, and also by relinquishment from Mrs. Thompson. It is contended by appellants, and rightly, that in this case it is necessary to show title to the farm upon which the corn grew, in order to establish appellee's case,, and, to do this, she would have to show her rights as an adopted citizen of the Cherokee Nation. There is nowhere any attempt to show that her marriage was not valid, and that she thereby became entitled to the rights of an intermarried citizen of that nation. There is, however, an attempt to show that she abandoned her husband, and thus forfeited those rights. Appellee and her husband were married in Ft. Wayne, Ind., in January, 1895. They immediately went to Indian Territory to live, and lived together until 'April of that year, when she returned to Ft. Wayne on a visit, as she testifies, as she was in poor health. According to Mrs. Thompson's statements, appellee claimed he (appellee's husband) did not have anything, and she was going back to her people, and she went, and that her husband tried to get her to stay. Appellee testifies, however, that she went* with her husband’s knowledge and consent; that he went with her to Nowata and Coffeyville, on her way to Ft. Wayne (and this is corroborated by other witnesses)'; that she and her husband corresponded regularly up to the time of his death, which occurred in August of that year; and that she had no intention of abandoning her husband. The continuance of the marriage relation, when once it has been entered into, is always and everywhere to be presumed, in the absence of clear and decisive proof to ‘the contrary, and in this case we do not believe the evidence is sufficient to show abandonment on the part of appellee. Upon the question as towhether the title to the farm upon which the corn grew was vested in ' appellee’s husband, there is a conflict of evidence. There is however, sufficient evidence to sustain the verdict of the jury. The reconcilement of conflicting testimony is within the province of the jury; and where no fraud or irregularity appears, and there is sufficient evidence to sustain the verdict, it will not be. disturbed. Appellee also claims title by relinquishment from Mrs. Thompson, who, on her part, says that the relinquishment was obtained by deceit and misrepresentation. This also was left to the jury to determine as a question of fact, under the instructions of the court below. They are the sole judges of the weight of the testimony and of the credibility of the witnesses. They have an opportunity of judging for themselves as to the demeanor of the witnesses upon the stand, and the weight to be attached to the testimony, and their findings will not be disturbed on slight provocation.

Appellants’ fifth assignment of error is as follows: “(5). The court erred in refusing to give to the jury instruction No. 1 for defendant, on abandonment.” The instruction requested is as follows: “No. 1. The jury is instructed by the court that if they believe from the evidence in this case that the plaintiff, Carrie McNair, while living with her husband, R. L. McNair, in the Cherokee Nation, Indian Territory, abandoned him, then the plaintiff cannot recover in this case, and the jury must find for the defendants.” The question of abandonment has beenpre-viously discussed ,and this court, being of the opinion that the evidence is not sufficient to show abandonment by appellee of her husband, are further of the opinion that there was no error in refusing said instruction.

There being no error in the record, we are of the opinion that the judgment of the court below should be, and it is, affirmed.

RaymoNd', C. J., and ClaytoN, J., concur.