Hubbard v. Chism , 5 Indian Terr. 95 ( 1904 )

Townsend, J.

The appellant has filed assignments of error as follows: “(1) The trial court erred in sustaining the demurrer the appellant had filed to the answer of the appellee to the complaint in the case, which error was excepted to at the time. (2) The trial court erred in holding that the complaint was insufficient to entitle the appellant to maintain his action against appellee, which error was excepted to at the time. (3) The trial court erred in not sustaining said demurrer to the answer, and in holding that the complaint was demurrable, which error was excepted to at the time.” Appellant says there is only one question in the case, and states the same as follows: “Was the complaint good in substance? Were all the matters alleged in substance that were essential to show a right of recovery in appellant? If judgment had been rendered for him on the complaint, would the judgment have been arrested because the complaint did not state a cause of action?” Appellant concedes that the rule was properly stated by this court, in regard to the effect of demurrer, in Shrimsher vs Newton, 3 Ind. Ter. 555, 64 S. W. 534, as follows: “As to the first assignment of error it is only necessary to cite Bliss on Code Pleading, as follows: ‘It is an old rule that a demurrer runs through the whole series of pleadings, and that judgment will go against the first party whose pleading is defective in substance. This rule is not a technical one. It necessarily attaches to every system, for when the court is advised of any substantial error or defect in a pleading — one that is not waived by pleading to the merits, and one that will render a verdict nugatory which may be founded upon it — it will go no further, and will require the defective pleading to be amended, or will render judgment against the party thus at fault. Hence it is held that a demurrer to an answer reaches a complaint that shows a want of jurisdiction over the subject of the action, or that does not show facts that constitute a cause of action,' Bliss, Code PI. (2d Ed.) § 417a. We are clearly of the opinion that under the authorities the demurrer was properly sustained.” The question, then, to be determined is, was the complaint “good in substance?” Plaintiff alleged that defendant became his tenant and entered into possession of the described premises lying in the Cherokee Nation, about September 1, 1898, under a written contract; that defendant continued in possession for 1899 under a verbal contract with plaintiff and paid rent; that defendant continued in possession for 1900 and 1901, and did not pay rent for the use of said premises, and therefore he sues. On June 28, 1898, Congress passed an act entitled “An act for the protection of the people of the Indian Territory, and for other purposes” (Act June 28, 1898, c. 517, 30 Stat. 495), commonly known as the “Curtis Bill,” which said act, in section 16 thereof (30 Stat, 501), provides as follows: “That it shall be unlawful for any person, after the passage of this act, except as hereinafter provided, to claim, demand, or receive, for his own use or for the use of any one else, any royalty on oil, coal, asphalt, or other mineral, or on any timber or lumber, or any other kind of property whatsoever, or any rents on any lands or property belonging to any one of said tribes or nations in said territory, or for any one to pay any individual any such royalty or rents or any consideration therefor whatsoever; and all royalties and rents hereafter payable to the tribe shall be paid, under such rules and regulations as may be prescribed by the Secretary of the Interior, into the Treasury of the United States to the credit of the tribe to which they belong; provided, that where any cit'zen shall be in possession of only such amount of agricultural or grazing lands as would be his just and reasonable share of the lands of his nation or tribe and that to which his wife and minor children are entitled, he may continue to use the same or receive the rents thereon until allotment has been made to him: provided further, that nothing herein contained shall impair the rights of any member of a tribe to dispose of any timber contained on his, her, or their allotment.” Under the terms of said law it is declared to be unlawful for any person “to claim, demand, or receive for his own use or for the-use of any one else * * * any rents on any lands or property belonging to any one of said tribes or nations,” and by the same section it is made unlawful for any one to pay any rents to any individual, etc. There is a proviso in said section that when any citizen shall be in possession of “only such amount of agricultural or grazing lands as would be his just and reasonable share of the lands of his nation or tribe and that to which his wife and minor children are entitled, he may continue to use the same or receive the rents thereon until allotment has been made to him.” Does the complaint in this case any where-disclose a condition that entitles plaintiff to recover in this action? •If plaintiff is a citizen, and is in possession of his just and reasonable share, etc., he can only use the same and receive the rents thereon until allotment. But this complaint does not discloses whether he is a citizen or not, and, if he is, whether the lands described come within the proviso or not. In our judgment, the complaint is defective in substance, and the decision of the trial court in sustaining the demurrer filed to the answer to the complaint was correct, and it is therefore affirmed.

Raymond, C. J., and Clayton, J., concur.