Scroggins v. Oliver , 7 Indian Terr. 740 ( 1907 )

Gill, C. J.

(after stating the facts as above). Chapter 119 of Mansfield's Digest of the Statutes of Arkansas of 1889 (Ind. Ter. Ann. St. 1899, c. 54), entitled “Pleading and Practice,” was adopted and put in force in the Indian Territory by Act Cong. March 1, 1889, c. 333, § 6, 25 Stat. 784, and readopted by act of May 2, 1890, 26 Stat. p. 94, c. 182, § 31. Section. 4955 of Mansfield's Digest of Statutes (Ind. Ter. Ann. St. 1899, § 3160), reads: “The action of an infant must be brought by his guardian or_ his next friend. Any person may bring the action of an infant as his next friend; but the court has power to dismiss it if it is not for the benefit of the infant, or to substitute the guardian of the infant, or another person as the next friend.” It is clear that Nettie Chandler, as next friend of the minor heirs of Susan Scroggins, deceased, could maintain the action in ejectment against the defendant, and, as the original complaint states that “their next friend Nettie Chandler, guardian,” sued, we submit the allegation in the amended complaint that she sued as their “next friend and guardian” did not constitute a material variance, and did not, as the learned court below held, substitute one party plaintiff for another, inasmuch as the court might well have held Nettie Chandler was not “guardian,” and yet allow the suit to proceed in the names of the minors by Nettie Chandler as “next friend.” Chandler, as administrator, was not an indispensable nor a necessary party plaintiff in the action to recover the realty. The only case in which the administrator in a suit to recover realty is a proper party plaintiff is when he, as administrator, is entitled to the possession thereof for the purpose of paying-debts against the estate. See Chowning vs Stanfield, 49 Ark, 60, 4 S. W. 276; Garibaldi vs Jones, 48 Ark. 230, 2 S. W. 844. That the heirs are the only necessary parties to recover the lands of the decedent, see further, Theurer vs Brogan, 41 Ark. 88; Anderson vs Levy, 33 Ark. 665; Haley vs Taylor, 39 Ark. 105; Sisk vs Almon, 34 Ark. 391; Mays vs Rogers, 37 Ark. 155; Crowell vs Young, 4 Ind. Ter. 148, 69 S. W. 829.

The plaintiffs in the case at bar are all Chickasaw Indians by blood*and owners of the improvements upon the realty sued for. Under the Atoka Treaty of 1898 (30 St at. 495, c. 517) and the Supplemental Treaty of 1902 (32 St at. 641, c. 1362), between the United States and the Choctaw and Chickasaw Indians, by reason of their ownership of said improvements the3r had the preferred and indefeasible right to select their allotments from said improved lands, and when selected and patents issued to them therefor said minors and plaintiffs took the same free of all incumbrances or antecedent debts. Section 23, Curtis Bill (Ind. Ter. Ann. St. 1899, § 57z25); section 11, Supplemental Treaty 1902 (Acts 57th Cong. 1st Sess. p. 642, e. 1362). To permit J. R. Chandler as administrator by appointment of the tribal Probate Court to sue, instead of J. R. Chandler as administrator by appointment of the United States Court, certainly was not a material change of the claim or cause of action as set forth in the original complaint, and really was immaterial in so far as Oliver or the merits of the case were concerned.

This cause, for the reasons hereinbefore stated, is reversed and remanded, with directions to the court below to overrule the demurrers to the plaintiffs’ amended complaint and proceed with the trial of the case.

Clayton and Lawrence, JJ., concur.