Tally v. Kirk , 6 Indian Terr. 331 ( 1906 )

Townsend, J.

(after stating the facts). The appellant (defendant) has filed two assignments of error, as follows: “(1) Because the court erred in instructing the jury as follows: ‘Gentlemen of the jury, you are instructed to bring in a verdict for rents for $100. The law is, gentlemen, it is a crime for people to rent land that they don’t own. For instance the court decided that it is unlawful for any party to receive for his own use or any one else any rent on land belonging to one of said Tribe or Nation, and so on. ' The land belonged to Margaret Jajaes and nobody has a right to go out and rent Margaret James’ land to any one else. Whoever occupied it and rented it was responsible for the rent. The allotment was Margaret James’ and no white man had a right to-rent out an Indian’s land and collect rent for it. This has been done many times but every time it comes before me he will get no assistance from the court,’ to which action of the court in so instructing the jury, the defendant then and there, in .open court and in the presence of the jury, excepted and still excepts. (2)Be-cause the court erred in overruling defendant's motion for a new trial, to which action of the court the defendant then and there duly excepted and still excepts.” Appellant discusses said assignments in his brief, which was answered in a brief by appellee (plaintiff), then appellant filed an amended brief' and in said amended brief appellant raises the question of' jurisdiction, which in our judgment is Conclusive of this case.

In the original complaint appellee (plaintiff) sued for the sum of $100 for rent, and asked an attachment for said amount to secure an alleged landlord's lien. In his amended complaint he sues for $100 for the use and occupation of certain premises under an implied agreement by defendant to pay for same. After the evidence had been presented to the jury the court directed that they should return a verdict for $100 in favor of appellee (plaintiff) which direction of the court was complied with in the verdict of the jury. This suit wasbrought originally in the District Court for the said sum of' $100, and the question presented for our consideration is, did the District Court have original jurisdiction of this action? Under section 4 of the act of Congress approved March 1, 1895, entitled, “An act to provide for the appointment of additional judges of the United States Court in the Indian Territory, and for other purposes,” it is provided: “The original jurisdiction of such commissioners as justices of the peace in civil cases shall, in all those classes of cases where jurisdiction is by this act conferred upon the United States Court in the Indian Territory, be exclusive where the amount or Aralue 0f the demand or of the property or thing in controversy does not exceed one hundred dollars.” Chapter 145, 28 Stat. 696. Mansfield’s Dig. § 4026 (Ind. Ter. Ann. St. 1899, § 2706), provides: “Justices of the peace shall severally have original jurisdiction in the following matters: First. Exclusive of the Circuit Court, in all matters of contract where the amount in controversy does not exceed the sum of one hundred dollars, excluding interest; and concurrent jurisdiction in matters of contract, where the amount in controversy does not exceed the sum of three hundred dollars, exclusive of interest.”

We are of the ópinion that the District Court did not have original jurisdiction to try this case, and hence this court has no jurisdiction, and the case is dismissed.

Gill, C. J., and Clayton and Lawrence, JJ., concur.