Neal v. Travelers Ins. Co. , 188 Okla. 131 ( 1940 )

On rehearing I find myself unable to concur in the conclusion of my associates. The question is of sufficient magnitude to warrant an expression of individual views.

The case involves a collateral attack upon the judgment of a court of general jurisdiction, holding valid a conveyance of restricted Indian lands. The judgment was rendered in 1931 by the district court of Pittsburg county. No appeal was taken and it became final.

We now in another and different action hold that that judgment was void because the court misapprehended the facts or erroneously applied the law to the facts as proven.

The specific question for decision in the case at bar is whether a final and unappealed from judgment of a district court of Oklahoma foreclosing a real estate mortgage, where the defendant was regularly served with summons and had her day in court, could be collaterally attacked on the ground that the mortgage foreclosed was void because the mortgagor was a full-blood Choctaw Indian and the mortgage covered the allotment of a deceased minor half-blood Choctaw child of said mortgagor, said allotment having been inherited by the mortgagor from the allottee, the mortgage not having been approved by the proper, or any, county court.

It is too well settled to require the citation of authority that in order for a judgment to be void and subject to collateral attack, there must have been at the time of its rendition a want of jurisdiction by the court where it was rendered.

Jurisdiction is the power to decide and comprehends the decision of questions of law as well as fact. The State of Rhode Island v. The Commonwealth of Mass., 9 L.Ed. (U.S.) 1233; Board of Commissioners v. Platt, 79 F. 567; Clevenger et al. v. Figley et al. (Kan.) 75 P. 1001; Fauntleroy v. Lum, 210 U. So. 230,

28 S.Ct. 641, 52 L.Ed. 1039; Burnet v. Desmornes y Alvarez, 226 U.S. 145, 33 S.Ct. 63, 57 L.Ed. 159. The existence of the power does not depend upon the subsequent correct exercise thereof, for to make the existence of the power dependent upon the correctness of the decision rendered is to deny the jurisdiction at its inception.

A district court of this state by its judgment in a former action has declared a conveyance of restricted Indian lands valid. We say it had no jurisdiction to do so, or, in other words, that it had no power to decide the question, yet paradoxically, we ourselves exercising appellate jurisdiction only on appeal from the same district court, assume the power to decide the same question and decide it differently. Our jurisdictional power to decide this question is no broader in scope than that of the trial tribunal. If it was wanting in judicial power to decide the question one way, we are likewise without jurisdiction to decide it the other.

There is some slight difficulty in applying the law relating to collateral attack to this case because of the "peculiar twist" in the line of decisions relating to this class of cases.

Some of our decisions have announced the theory that, since a conveyance of Indian land contrary to restrictions cannot be legally made, validity to such a conveyance cannot be imposed by judicial decision. The reasoning of the cases is entirely fallacious, since it completely overlooks the force and effect of judgments. In order to correctly say that a judgment erroneously declaring an invalid deed or mortgage to be valid is void for want of jurisdiction, it is first essential to say that the court has no power to pass on the question at all; for the power to pass on the question connotes the power to decide it erroneously. The jurisdiction of a court includes the power to decide, and the power does not depend upon the correctness of the decision. See discussion and authorities in Protest of Gulf Pipe Line Company, Seminole County et al. v. Gulf Pipe Line Co., 168 Okla. 136, 32 P.2d 42.

This criticism of the rule applied to judgments on this question may seem belated in view of the lapse of time since this court first announced a contrary theory in the cases cited in the majority opinion. However, I wish to call attention to the fact that those discussions are based upon the extraordinary force that we have seen fit to give to federal legislation. Ordinarily, it is the rule that the federal court "bows" to us on questions relating to the construction and effect of state statutes, while we reciprocate in kind where federal statutes are involved. At the time we first announced the theory upon this point the federal courts had not expressed themselves. They now have. In Vinson et al. v. Graham et al.,44 F.2d 772, this question was before the court, and theaccepted principles of collateral attack, as distinguished from the unique exception adopted by this court, were held applicable. It was therein said:

"Does a United States District Court for the proper district, in a suit brought by the United States (the defendant having been brought into court by proper process) have jurisdiction to determine whether a deed of an Indian allottee was made and delivered in violation of restrictions imposed by Congress? That such a question is a proper one for judicial inquiry and that a United States District Court for the proper district has jurisdiction in such a case is conclusively settled by an unbroken line of authorities. Heckman v. United States, 224 U.S. at pages 428-445, 32 S.Ct. 424, 56 L.Ed. 820; LaMotte v. United States, 254 U.S. 570, 575, 41 S.Ct. 204, 65 L.Ed. 410; Mars v. McDougal (C.C.A. 10) 40 F.2d 247, 248; Ledbetter v. Wesley (C.C.A.) 23 F.2d 81, 86; Bowling v. United States, 233 U.S. 528, 534, 34 S.Ct. 659, 58 L.Ed. 1080; section 41, title 28, U.S.C. (28 U.S.C.A. para. 41).Such jurisdiction includes the power to determine the questionpresented erroneously as well as rightly. Ex parte Moran (C.C.A. 8) 144 F. 594; Jack v. Hood (C.C.A. 10) 39 F.2d 594. In applying the doctrine of estoppel by judgment, it is immaterial that the judgment which works it mayhave been erroneous, that the court may have been mistaken inthe facts; may have misconceived the law, or may havedisregarded the public policy of the nation when it renderedit, if the court had jurisdiction of the subject matter of, and the parties to, the action in which such judgment was rendered. Such a final judgment on the merits, in an action between the same parties or between those in privity with them upon thesame claim or demand, is conclusive whether right or wrong, notonly as to every matter offered in the former action but as to every admissible matter which might have been offered to sustain the claim. Swift v. Jackson (C.C.A. 10) 37 F.2d 237, 240, 241." (Emphasis ours.)

— and:

"A valid judgment on the merits, rendered by a court of competent jurisdiction in a former suit between the same parties or their privies, operates, in a subsequent suit on the same cause of action, as an estoppel not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other admissible matter which might with propriety have been offered for that purpose."

See, also, Fulsom et al. v. Quaker Oil Gas Co. et al.,35 F.2d 84; Mars et al. v. McDougal et al., 40 F.2d 247; and Doran v. Kennedy, 237 U.S. 362, 35 S.Ct. 615, 59 L.Ed. 996.

I do not wish to be understood to assert that all collateral inquiry into questions of fact are foreclosed by a final judgment. There are some exceptions to the rule. Some questions of fact are strictly jurisdictional, and as to those questions, subsequent investigation on collateral attack may destroy the judgment. Noble v. Union Logging Railroad Co., 147 U.S. 165, at page 173 et seq., 13 S.Ct. 271. However, the federal court, upon consideration of the force of federal statutes, has definitely declined to classify the type of question involved in the case at bar as strictly jurisdictional from a judicial standpoint. Vinson et al. v. Graham et al., supra. Our decisions, insofar as they conflict, give a different and added effect to the federal legislation, for there is nothing in the acts of Congress which commits the exclusive power to judicially decide such questions to the federal courts as distinguished from the state courts. Consider the decision in Fulsom et al. v. Quaker Oil Gas Co., supra.

The instances in which this and other state courts have judicially determined questions relating to restrictions upon the alienation of Indian lands are legion. In this connection and upon this basis a vital distinction may well be said to exist between the case at bar and the case of Naharkey v. Sand Springs Home, 177 Okla. 371, 59 P.2d 289. That case is cited in the majority opinion. There the judgment reviewed was one undertaking to partition restricted Indian lands which the court did not possess the judicial power to do; whereas, in the case at bar the action is to foreclose a mortgage, which connotes the power to decide whether the alleged mortgage should be foreclosed or not. This is a judicial power which the trial court clearly possessed, and the question of the validity of the mortgage presents a matter to be decided in the exercise of that jurisdiction.

The majority of my associates, after reviewing the federal decisions herein mentioned, have concluded that upon analysis of the particular facts in each case harmony can be said to exist between the federal and state decisions. However, the conclusion thus announced does not appear to be sufficiently certain to constitute the basis of the decision, for the Enabling Act is then invoked with the apparent purpose of justifying the existence of a difference, which according to the first announced conclusion did not exist.

Nor do I entertain the view that the quoted portion of the Enabling Act operates to withhold judicial power from the courts of the state. It does not pretend to do so, and no logical reason can be advanced why by implication it should be interpreted as a greater diminution of normal state sovereignty than its plain wording indicates. It announces and preserves the right of Congress to legislate on Indian affairs. That is a reservation of legislative power, as distinguished from judicial authority, and even though it may be urged arguendo that Congress could have withheld from the state courts the power to judicially apply acts of Congress relating to Indians to fact situations, Congress has made no general attempt to so limit the power of the judicial branch of the state government, and there is no specific legislation dealing with the particular judicial question here involved.

The fact that Congress has, for certain purposes, designed certain state courts to act in a capacity comparable to federal administrative agencies exercising quasi-judicial power does not connote a contraction of the judicial power of state courts of general jurisdiction.

Upon the foregoing considerations, I am impelled to conclude that the result announced by my associates is erroneous, and I therefore respectfully dissent.

I am authorized to state that Mr. Justice GIBSON concurs in the above views.