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764]; Stone v. United States, 164 U. S. 380 | [41: 477]. Applying the law to the facts, it is clear that, as the Indians by whom the depredation was committed were not in amity, the court correctly decided that it was without jurisdiction. Marks v. United States, 161 U. S. 297 [40: 706], Followed in Leighton v. United States, 161 U. S. 291 [40: 703]; Valk v. United States, 168 U. S. 703 [42: 1211]. This legal conclusion was not [81] disputed in the argument at bar, *but it was contended that this court will, as a matter of law, where the record enables it to do so, determine for itself whether the ultimate facts found below are supported by any evidence whatever, and that it also will determine whether the ultimate facts were solely deduced by the court below from evidence which was wholly illegal. And upon the foregoing legal proposition it is asserted, first, that it is disclosed by the record that there was no evidence whatever tending to show that the depredation was committed by the Mescalero Apache Indians; and, second, that the record also discloses that the conclusion of fact that the Indians committing the depredation were not in amity was solely rested by the court upon certain official reports and documents which were inadmissible. The rule by which these contentions are to be measured is thus stated in United States v. Clark, 96 U. S. 40 [24: 698], as follows:

[82]

"But we are of opinion that when that court [the court of claims] has presented, as part of their findings, what they show to be all the testimony on which they base one of the essential, ultimate facts which they have also found and on which their judgment rests, we must, if that testimony is not competent evidence of that fact, reverse the judgment for that reason. For here is, in the very findings of the court, made to support its judgment, the evidence that in law that judgment is wrong. And this not on the weight or balance of testimony, nor on any partial view of whether a particular piece of testimony is admissible, but whether upon the whole of the testimony as presented by the court itself, there is not evidence to support its verdict; that is, its finding of the ultimate fact in question." See also Stone v. United States, supra, 383 [41: 478].

Whether the record before us is in such a state as to support either of the contentions above stated is the question for decision. In so far as the question of the tribe of Indians by whom the depredation was committed, it obviously is not, since there is not therein contained any reference whatever to the evidence upon which the court based its conclusion on this subject. The portion of the record which is relied upon to establish the contrary is the following statement:

**the court determines that the Mescalero Indians were not in amity at the time of the depredation, from the following official reports, documents, and facts deduced from the testimony of witnesses, which are set forth in the findings."

But the matter thus certified clearly purports only to relate to the evidence from which the court drew its conclusions as to

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amity, and not to that upon which it based its finding as to the tribe by whom the depredation was committed. It follows, then, that the argument is simply this: That we are to determine that there was no evidence supporting the finding as to the particular tribe committing the depredation, when the record does not disclose and the court has not certified the proof from which its conclusion was drawn. The claim that the record discloses that the finding as to amity rested solely upon certain official reports and documents finds also its only support in the excerpt from the record just above stated. While it is true the statement certifies that certain reports and official documents were considered by the court in reaching its finding as to the want of amity, it does not state that it was alone based upon these reports, for it says that the determination that the Indians were not in amity at the time of the depredation was likewise drawn from "facts deduced from the testimony of witnesses, which are set forth in the findings.' Now, while the findings contain certain reports and official documents. presumably those referred to in the statement, they do not contain the testimony of any of the witnesses. After reproducing the reports and documents, the record concludes with a mere recapitulation of the result of the testimony of certain witnesses as to the number of Indians by whom the depredation was committed and the circumstances surrounding, that is, the nature of the attack made by the Indians and the conflict which ensued when it was made. It follows, that even if the reports and official documents to which the findings refer were legally inadmissible to show want of amity, we could not hold that there was no legal evidence supporting the conclusion that amity did not exist, since all the evidence which the court states it considered on this subject is not in the record. But the *offi- [83] cial reports in question were legally competent on the issue of amity. It is conceded that if competent they were relevant, since it is admitted they tended to establish that the tribe was not in amity when the depre dation was committed.

The act of March 3, 1891, for the adjudication and payment of claims arising from Indian depredations (26 Stat. at L. 851), provides in the fourth and eleventh sections as follows:

"In considering the merits of claims presented to the court, any testimony, affidavits, reports of special agents or other officers, and such other papers as are now on file in the departments or in the courts, relating to any such claims, shall be considered by the court as competent evidence, and such weight given thereto as in its judgment is right and proper."

"Sec. 11. That all papers, reports, evidence, records, and proceedings now on file or of record in any of the departments, or the office of the secretary of the Senate, or the office of the clerk of the House of Representatives, or certified copies of the same, relating to any claims authorized to be prose cuted under this act, shall be furnished to

the court upon its order, or at the request of
the Attorney General."

These provisions express the manifest pur-
pose of Congress to empower the court of
claims to receive and consider any document
on file in the departments of the government
or in the courts, having a bearing upon any
material question arising in the considera-
tion of any particular claim for compensa-
tion for Indian depredation, the court to al-
low the documents such weight as they
were entitled to have.

There is no merit in the contention that,
although documents within the description
of the statute were relevant to the ques-
tion of amity, they were nevertheless incom-
petent, as they did not refer to the partic-
ular depredation in question, because the
statute only authorizes the consideration of
reports, documents, etc., "relating to any such
claim." As amity was made by law an es-
sential prerequisite to recover, it follows that
evidence bearing on such subject was neces-
sarily evidence relating to the claim under
consideration.
Affirmed.

[84] CENTRAL LOAN & TRUST COMPANY, Appt.,

v.

CAMPBELL COMMISSION COMPANY.

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Statement by Mr. Justice White: This action was commenced on July 2, 1895, in the district court of Noble county, Oklahoma, by the Central Loan & Trust Company, a Texas corporation, against the Camp(See S. C. Reporter's ed. 84-99.) bell Commission Company, a Missouri corporation, to recover upon certain promissory Necessary parties to appeal-Oklahoma notes not then due. Upon affidavit a writ statute-appointment of garnishee-pow- of attachment issued, and was levied upon er of probate judge allowance of attach-five thousand head of cattle, as the property ment-right to attach nonresident's prop-of the Campbell Company. After such levy, erty- equal protection of the laws.

1. Interveners who claim the proceeds of an
attachment sale, who did not except in the

a summons in garnishment was served upon
one A. H. Pierce, who answered that he was
not indebted to and held no property owned
by or in which the Campbell Company had
trial court to vacating the attachment and
an interest. As "a further and special an-
dismissing the action, and who were not
parties to the proceedings to review the judg-tered into between himself and the Campbell
swer" Pierce set out a written agreement en-

ment of the trial court in the territorial su

preme court, and were not treated in that
court as necessary parties, are not necessary
parties to an appeal from the judgment of the
supreme court to this court.

2 Under Okla. Stat. 1893, § 4085, the answer
of the garnishee upon which no issue is taken
is not conclusive of the truth of the facts
stated therein, as against an interpleader who
claims to own the property.
8. The appointment of the garnishee as re-
ceiver of the property attached, by his own

Company for the sale and shipment by him, to that company, of a specified number of cattle. This agreement provided that Pierce was to deliver at Pierce Station, Texas, a designated number of cattle, which the company agreed to ship to its pastures in the Indian territory "at its own risk and pay all freight and other expenses," the expenses to embrace the wages of a man to be put by Pierce with the cattle, "to represent his interest in said five thousand dollars had been paid at the cattle." It was recited in the contract that signing of the agreement "as part of the purchase price;" and the company further agreed to pay to Pierce interest at the rate of ten per cent per annum on all unpaid amounts from the date of shipment of the cattle until full and final payment in accordance with the contract. The company also ganic act of the territory, or void, as it does agreed to ship the cattle to market during not involve the discharge of a judicial func- the summer or fall of 1895, *for account of [86] B. Where the ground of attachment may be Pierce, and to apply the proceeds of sale to alleged in the language of the statute, the au- payment for the cattle until fully paid for thority to allow the writ need not be exercised at the rate of fifteen dollars per head; and by the judge of the court, but may be dele-it was also stipulated that title and ownergated by the legislature to an official. ship of the cattle should be and remain in

consent and that of all the parties, to dispose
of the property and pay his own claim and
hold the balance to the order of the court,
rendered it unnecessary to traverse the answer
of the garnishee, and estopped him from claim-
ing individual possession of the property.
4. The Oklahoma statute conferring power
upon the probate judge to sign an order for
an attachment is not repugnant to the or

tion.

6. The organic act of Oklahoma territory Pierce until such payment.

"That is would be to the interest of all parties concerned to have A. H. Pierce appointed receiver to take charge of said steers and sell the same to the best advantage, aecounting to the court for all sales, and, after satisfying his claim under said contract, hold the money remaining in his hands subject to the final order of this court.

In said "further and special answer" it pointment without bond to sell the cattle in was also alleged that the cattle, upon which the usual commercial way, instead of at pub the writ of attachment had been levied, lic sale, and the application concluded as folformed part of the number covered by the lows: contract above referred to, and had been shipped by Pierce to the pastures of the Campbell Company, but that they had never ceased to continue in the pussession of Pierce; it being further claimed that the cattle were subject to a charge for unpaid purchase money, expenses for their care and keeping, etc. The answer further stated that notice had been received by Pierce from one T. A. Stoddard, trustee, that an assignment had been made of said contract to him by the Campbell company, and a copy of the alleged assignment was annexed. It purported to "sell and assign all the title and interest in and to" the contract between Pierce and the Campbell Company, any profit which might be derived by Stoddard from carrying the contract into final execution to be applied by him as trustee to the payment, pro rata, of certain described notes. The garnishee also declared that on July 12, 1895, receivers had been appointed of the assets of the Campbell Company, and the answer concluded with asking that Pierce might be discharged as garnishee.

With the answer to the garnishment there was also filed by Pierce what was termed an inter plea. It was therein, in substance, averred that the cattle which had been levied upon were wrongfully detained from Pierce; that he was entitled to their immediate possession; and he prayed that on the hearing of the interplea judgment might be awarded for the return of cattle, with damages for their alleged wrongful seizure and detention. A motion was also filed, on behalf of Pierce, "as garnishee and interpleader," to discharge the attachment, substantially on the ground that the cattle belonged to Pierce, and that the latter was not indebted to the Campbell Company and held none of its property. [87] "On the date when this motion came on for hearing the plaintiff filed an application for the appointment of Pierce as receiver, "to take charge of the property attached in this action and sell the same in accordance with a certain written contract" attached as an exhibit, being the contract referred to in the answer of Pierce to the garnishment. The service of the writ of attachment was averred, and it was stated that the cattle which had been levied upon had been "under the care, custody, and control of the sheriff of Noble county since the third day of July, 1895, when said attachment was levied;" and it was further averred: "That said A. H. Pierce claims no interest in said property of this uit except as set forth in said contract hereto attached, and is entirely friendly to all parties concerned in said action, and, as plaintiff and its attorneys are informed and believe, the appoiutment of said A. H. Pierce as receiver herein would be entirely satisfactory to the defendant and all other parties in said action."

"That said A. H. Pierce has already shipped from five thousand head of steers so seized in attachment about three hundred and sixty head and sold the same in market, and now holds the proceeds thereof, which should be accounted for by A. H. Fierce along with other accounts of shipments."

An order appointing the receiver was thereupon made, the consent of the attorneys both of Pierce and the plaintiff being noted there on, and Pierce qualified as receiver.

A summons which had been issued having been returned *“defendant not found," publi-[88] cation was had in compliance with the legal requirements.

Subsequently Stoddard, trustee, filed an interplea. Therein it was averred that the contract between Pierce and the Campbell Company had been made by that company for account of a firm styled George W. Miller & Son, and had been entered into in the name of the Campbell Company in order to secure that company for advances which had been made by it to Miller & Son; that under an assignment by the Campbell Compary to Stoddard he was entitled to the proceeds of the sale of the cattle in the hands of the receiver after the claim of Pierce had been paid. Plaintiff demurred to this interplea on November 5, 1895, but no action was ever had thereon.

A report was filed by the receiver, showing that he had sold the cattle, and from the proceeds had satisfied in full his claim under the contract of September, 1894, and that a balance was in his hands subject to the order of the court. Thereafter the Campbell Company filed a "plea to the jurisdic tion," and subsequently filed an amended plea which stated seven grounds why the court was without jurisdiction, all of which will be hereafter referred to.

After this George W. Miller and J. C. Miller filed an interplea in the action, claiming that they were the real contractors with Pierce in the agreement of September 8, 1894, and averred their ownership of the cattle, and that if the contract had been assigned to Stoddard, it was done without their authority, and was void. It was prayed that the proceeds of the cattle be paid to them after the payment to Pierce of the amount of his claim. No issue was taken on this interplea.

On the same date that the Miller interplea was filed the plaintiff filed an answer to the interplea of A. H. Pierce, averring The pecuniary responsibility of Pierce and among other things that Pierce, as a result his large experience as a dealer and raiser of the receivership proceedings, had waived and shipper of cattle, and other circum- and abandoned all his claim in and to the stances, were set forth as warranting his ap-'ownership of the cattle levied on under the

attachment. On December 16, 1895, the plea | sented without their presence. If their abof the Campbell Company to the jurisdiction sence was treated by the parties to the pro[89] was heard, upon the *record, over objection ceedings in the supreme court of the terriand exception by plaintiff. The court over- tory as not affecting the right to a review of ruled all the grounds assigned in the plea ex- the judgment of the trial court, there can be cept the second, which asserted that there no reason why we should now hold that the was a want of power in the probate judge to presence of such interveners is necessary on issue an order for attachment. As to such this appeal, which has solely for its object ground it held that the act of the Terri- a review of the judgment rendered by the torial Assembly of Oklahoma, conferring supreme court of the territory. Considering power upon the probate judge, as to debts the facts just stated, and the further fact not yet due, to order an attachment in the that it is obvious that the rights of the inabsence of the district judge from the county, terveners cannot be prejudiced by a review was unconstitutional and void. It there- of the action of the supreme court of the terupon concluded that all the proceedings were ritory in dismissing the cause for want of void, the attachment was quashed, and the jurisdiction, the motion to dismiss is oversuit dismissed for want of jurisdiction, with- ruled. out prejudice to the Campbell Company. The Campbell Company excepted to the action of the court in overruling all the grounds of its plea to the jurisdiction but that referring to the power of the probate judge, and the plaintiff excepted to the action of the court holding that there was a want of power in the probate judge.

Error was prosecuted to the supreme court of the territory. That court, whilst concluding that the lower court was wrong in deciding that the probate judge was without authority to allow the attachment, yet affirmed the judgment below on the ground that as an actual levy on the property of the defendant Campbell Company was necessary to give the lower court jurisdiction to determine the cause, and as there had been in law no such levy, therefore the court below was without jurisdiction, and had correctly dismissed the suit. The reasoning of the court, in effect, sustained the third ground of the motion to quash the attachment made by the Campbell Company. A petition for rehearing having been overruled, the cause was brought to this court.

Mr. William D. Williams for appellant.

Mr. John W. Shartel for appellee. [89] *Mr. Justice White, after making the fore going statement, delivered the opinion of the

court:

The third ground stated in the plea of the defendant, the Campbell Company, to the jurisdiction of the court, was the one which the supreme court of the territory found to be well taken, and upon which it based its affirmance of the judgment quashing the attachment and dismissing the action for want of jurisdiction. The reasoning by which the court reached its conclusion was in substance as follows:

The garnishee Pierce answered that he had nothing subject to garnishment. After do ing this, he further answered, setting out an alleged contract between himself and the defendant, *by which he had agreed to sell and [91] ship to the pastures of the defendant a certain number of cattle, which agreement had been carried into execution, the cattle seized under the attachment being a portion of those shipped in carrying out the contract. The answer then stated that although the cattle had been thus shipped, by the terms of the contract, the right to their possession remained in the garnishee Pierce, to whom there was a large amount due under the contract for purchase money and expenses. The answer further stated that the garnishee had been notified of an assignment by the defendant of its rights under the contract, the date of this assignment as given being prior in time to the levy of the attachment. Considering that there had been no traverse by the plaintiff to the answer of the garnishee, homa statute, the court concluded that all within twenty days, as required by the Oklathe facts and averments and the inferences deducible therefrom, stated in the answer, the garnishee and the plaintiff, but also bewere to be taken as true, not only as between tween the plaintiff and the defendant, in de had been levied upon, under the attachment. termining whether property of the defendant Upon this assumption, finding that the an

[90] *On the threshold it is necessary to dispose of a suggestion of want of jurisdiction made by the appellee. It is based on the proposition that as the interveners in the trial court are not made parties to this appeal, we are without jurisdiction, since the judgment to be rendered may materially prejudice their rights. But the interveners did not except to the action of the trial court in vacating the attachment and dismissing the action. They were not made parties to the proceed-swer of the garnishee established that no ings in error prosecuted from the judgment of the trial court to the supreme court of the territory. In that court the cause was determined without any suggestion, so far as the record discloses, that the questions arising on the record could not be decided in the absence of the interveners, and the supreme court of the territory manifestly assumed that the interveners were not essential parties to a determination of the controversy before it, since it passed on the case as preU. S., Book 43.

173 U. S.

40

property of the defendant had been levied upon under the attachment, it thereupon dissolved the attachment and dismissed the suit. But this reasoning was fallacious, since it assumed that because the failure to traverse the answer of the garnishee was conclusive of his nonliability, in the garnishment proceedings, it was therefore equally so, as between the plaintiff and defendant, in determining whether the property which had been levied upon under the attachment be

625

longed to the defendant. But the two considerations, the liability of the garnishee under the proceedings in garnishment and the validity of the levy previously made under the attachment, were distinct and different issues. The section of the Oklahoma statute to which the court referred (Oklahoma Stat. 1893, § 4085) provides that the answer of the garnishee "shall in all cases be conclusive of the truth of the facts therein stated, unless the plaintiff shall within twenty days serve upon the garnishee a notice in [92] *writing that he elects to take issue on his answer. It, however, can in reason be construed only as importing that the facts stated in the answer, unless traversed, should be conclusive, for the purpose of determining whether the garnishee was liable under the process issued against him and to which process his answer was directed.

Indeed, all the facts stated in the "further" answer of the garnishee were, in legal effect, substantially irrelevant to the issue between the plaintiff and the garnishee, since they referred, not to the garnishee's liability to the defendant, but propounded a distinct and independent claim which the garnishee asserted existed in his favor as against the defendant, as a basis on his part for claiming property which was already in the possession of the court under the attachment, and held as the property of the defendant in attachment. This was the view taken by the garnishee of his rights on the subject, for the answer in the garnishment concluded simply by asking that the garnishee be discharged from the proceedings. And on the same day he intervened in the main action and filed his interplea asserting in his behalf a right of possession to the cattle seized and demanding damages for their detention. The judgment below, then, not alone caused the failure to traverse the answer to conclude the plaintiff as to the issues which could legally arise on the garnishment, that is, the liability of the garnishec thereunder, but it also made the failure to traverse operate as a summary and conclusive finding in favor of the garnishee on his interplea in the action, which was a wholly independent and distinct proceeding from the garnishment itself. The reasoning necessarily went further than this, since by relation it caused the answer of the garnishee to become conclusive between the plaintiff and the defendant, thereby setting aside the seizure made before the garnishment issued, falsifying and destroying the return of the sheriff that he had levied upon the property of the defendant, and in effect decided the case in favor of the defendant without proof and without a hearing.

Nor can a different conclusion be reached by considering that in the further answer of [93] the garnishee it was stated that *he had been notified of an assignment of the rights of the defendant Campbell Company under the contract, purporting to have been made prior to the levy of the attachment. This was not pertinent to the question of the liability of the garnishee under the garnishment proceedings, and could not operate to conclusively establish as between the plaintiff and the

defendant, or as between the plaintiff and the alleged assignee, either the verity or the legal sufficiency of the alleged assignment.

Aside, however, from the foregoing consideration, the record established a condition of fact which relieved the plaintiff from the necessity of traversing the answer of the garnishee, in so far as that answer referred to the independent facts substantiating the intended claim of the garnishee to the right of possession of the property already under seizure, and which, moreover, estopped the garnishee, and therefore the defendant, from asserting any right of possession by reason of the facts alleged in the further answer. Before the time for traverse had expired, and at the date when a motion filed by Pierce, as garnishee and interpleader, to discharge the attachment on the ground of his assumed right of possession under the contract, had been noticed for hearing, the court, by the consent of plaintiff and the garnishee (the only parties who had up to that time appeared in the cause), appointed the garnishee Pierce receiver, to dispose at private sale of the cattle, which had been levied upon, to pay from the proceeds the claim of Pierce, by virtue of his contract, and to hold the balance subject to the final order of the court. Obviously, this order, and the rights which Pierce took under it, were wholly incompatible with the assumption that he was entitled to the possession of the property levied upon as the owner thereof. By the effect of the order, he was to be paid the full purchase price of the cattle. He could not take the price and keep the cattle. The situation was this: At the time the Campbell Company made its motion to dismiss for want of jurisdiction, the garnishee had taken substantial rights which had for their inevitable legal effect to render unnecessary any traverse of so much of his answer as referred to his rights under the sup- [94] posed contract, and which also disposed of his interplea and claim of individual right to the possession of the property levied on under the attachment; yet the result of the judgment rendered below was to dismiss the action at the instance of the defendant on the ground of supposed rights vested in the garnishee, when the garnishee himself had disclaimed or had abandoned the assertion of such presumed rights.

As the foregoing reasons dispose of the view of the case taken by the lower court, we confine ourselves to them. Because, however, we do so, we must not be understood as intimating that the defendant had the right to assail the jurisdiction of the court, or question the right of the court to order the giving of notice by publication, on the ground that it was not the owner of the property actually levied upon, and that the affidavit for publication was untrue in stating that the defendant had property within the jurisdiction, when if it were not such owner no prejudice could come to it, as the judgment of the court, from the nature of the proceeding before it, could necessarily only operate upon the property levied on. Nor, moreover, must we be considered as as

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