Kelley v. McCombs , 23 Okla. 867 ( 1909 )

This is an action in equity, brought and tried on the equity side of the docket of the United States Court for the Western District of the Indian Territory at Muskogee. Plaintiffs in error seek by writ of error to have the decree entered therein reviewed by this court.

In Porter et al. v. Brook, 21 Okla. 885, 97 P. 645, it was held by this court that subsequent to the approval of Indian Appropriation Act March 3, 1905, c. 1479, § 12, 33 Stat. 1081 (U.S. Comp. St. Supp. 1907, p. 208), appeals taken from the United States Courts of the Indian Territory to the United States Court of Appeals for that territory must be taken in the manner governing the taking of appeals and writs of error from the circuit court of the United States to the Circuit Court of Appeals of the United States for the Eighth Circuit.

In Moberly v. Roth (recently decided by this court), ante, p. 856, 102 P. 182, it was held that a judgment rendered in a United States Court of the Indian Territory less than six months prior to the admission of the state, from which no appeal had been taken at the time of the admission of the state, could be appealed from to this court after the admission of the state in the manner provided by section 12 of the said act of Congress approved March 3, 1905 (c. 1479, 33 Stat. 1081 [U.S. Comp. St. Supp. 1907, p. 208]). Under the rule in that case, we think that the appeal (and we here use the word "appeal" in its general sense), which had been begun by plaintiff in error in this action before the admission of the state, but which had not been perfected, if it had been properly begun, could have been completed after the admission of the state.

But plaintiffs in error seek to have this court review by writ of error a decree in chancery. This he cannot do. Under the federal procedure which controls the mode of review in a case where judgment was rendered in a United States court of the Indian Territory a review of a decree in equity can be had only by appeal, and not by writ of error. Highland Boy GoldMin. Co. v. Strickly, 116 Fed. 852, 54 Cow. C. A. 186; Nelson etal. v. Lowndes Co., 93 Fed. 538, 35 Cow. C. A. 419; McCollum v. Eager, 2 How. 61, 11 L. Ed. 179; Walker v. Dreville, 12 Wal. 440, 20 L. Ed. 429; Hayes v. Fischer, 102 U.S. 121, 26 L. Ed. 95. In HighlandBoy Gold Min. Co. v. Strickley, supra, Sanborn, Circuit Judge, who delivered the opinion of the court. says:

"A decree in equity cannot be reviewed by a writ of error, nor can a judgment at law he challenged by an appeal."

It therefore follows that this proceeding must be dismissed.

All the Justices concur.