Grave considerations of public policy as well as sound and well-settled legal principles, it seems to me, require that this court not disturb the opinion delivered in this case on April 19, 1927, and reported in 126 Okla. 12, 257 P. 761.
This is a second appeal in this cause to this court from judgments of the district court of Nowata county. The case as originally instituted was an action in that court by Taylor Eli, James Eli, and Charlotte Chuculate, full-blood Cherokee Indians, against the Carter Oil Company, J. Wood Glass, F.A. Calvert, and Luella P. Chestnutt. The petition presented in separate counts, actions in ejectment, to quiet title, and for an accounting for rents and profits. The land involved is the allotment of Nancy Eli, a full-blood Cherokee Indian who died in 1903 and before the allotment was made. Selection of the allotment was made for the heirs, the plaintiffs below, by an administrator appointed for the purpose by the United States District Court for the Northern District of Indian Territory. The administration proceeding was pending in the said United States District Court sitting in probate at Tahlequah, in what afterwards became Cherokee county, upon the advent of statehood, November 16, 1907. By the Enabling Act, and the Schedule to the Constitution of Oklahoma, jurisdiction over the cause was transferred to the district court of Cherokee county, and that court, by an order entered November 20, 1907 (four days after statehood), transferred the cause to the county court of Cherokee county, where it pended until October 22, 1908, when by an order entered in due course the cause was closed and Andy Dick, the administrator, finally discharged. The sole function discharged by the administrator and the sole purpose for which he was appointed appears to have been the selection of an allotment for the heirs of the decedent. It does not appear that Nancy Eli ever owned any estate of any kind anywhere other than the inchoate right to an apportionment from the tribal lands of the Cherokees.
Nancy Eli lived and died in that part of Indian Territory which was then embraced in the Northern District and which thereafter becameAdair county, Okla. The lands allotted to her heirs as aforesaid were restricted as to alienation by a congressional proviso that no conveyance of title thereto by them should be valid "unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee."
Defendants and their privies below assert title to the land through conveyances from the Indian heirs approved by the county *Page 293 court of Adair county. Prior to the filing of the suit and when defendants were in possession under such claim of title, the Indian plaintiffs employed F.C. Wilson, an attorney at law, duly licensed as such, to prosecute an action for the recovery of the land and for rents and profits upon a contingent fee basis, agreeing to convey and conveying to him by deeds and assignments in proper form an undivided one-half interest in all moneys and property that might be recovered. These conveyances were duly approved by the county court of Cherokee county. Soon after the suit was filed, the Indians by further assignments and conveyances in proper form conveyed all their remaining interest in the property in suit to one R.E. Tucker for a cash consideration of $750. These instruments were also duly approved by the county court of Cherokee county. After the suit was filed, on motion of some of the defendants, Wilson, the plaintiff's attorney, and Tucker, their grantee, were by order of court joined as parties plaintiff. F.C. Wilson died while this suit has been pending in the courts and his interests are now revived in the name of his appropriate legal representatives.
When the cause was originally called for trial, it was agreed that the causes of action involving title to the land, viz., in ejectment, and to quiet title, should be first tried to a conclusion and the trial of the cause of action for an accounting reserved until the title was settled. Title to the land depended, under the facts which are nowhere seriously disputed, primarily upon one question, viz., whether jurisdiction to approve deeds of full-blood Indian heirs of Nancy Eli was vested in the county court of Cherokee county or in the county court of Adair county.
The first judgment of the trial court was for the defendants. Upon the first appeal to this court that judgment was reversed in an opinion which appears from the record to have been in all respects duly and regularly entered by this court without a dissenting vote. The former opinion which appears in full as Eli et al. v. Carter Oil Co. et al., supra, held that jurisdiction to approve conveyances of full-blood Indian heirs to the Nancy Eli allotment was lodged in the county court of Cherokee county; that defendants' muniments of title were void, and that plaintiffs and their grantees were entitled to recover.
By expressly conceding and pleading the conclusiveness and finality of the former decision of this court, defendants appealed to the Supreme Court of the United States by certiorari, where on hearing the matter, the appeal was dismissed. Carter Oil Co. et al., Petitioner, v. Taylor Eli et al., No. 496, 72 L. Ed. 994. Upon denial of certiorari by the Supreme Court of the United States, three petitions for rehearing were heard and considered by this court and overruled. Thereupon this court issued its mandate to the trial court, which, omitting the formal parts, stated:
"Now, therefore, you are hereby commanded to cause such reversal to show of record in your court and to issue such process and to take such other and further action as may be in accord with right and justice and said opinion."
This mandate was duly transmitted to the trial court and by it spread of record.
The trial court in the proceedings from which the instant appeal was lodged, construed that mandate of this court as precluding a re-examination by it of any question touching the validity of the deeds under which plaintiffs asserted title to the land. At page 132 of the case-made appears a motion for leave to file supplemental answer and amendment to original answer and cross-petition, filed by the Carter Oil Company. At page 277 appears a similar motion by defendants Glass and Calvert. Among other defenses which the defendants sought to inject into the controversy were the following:
"That at the original trial of this case, the defendants attempted to prove that Taylor Eli had in such manner been appointed such administrator; that in proof thereof, it offered in evidence a certified copy of the appearance docket in case No. 301 in the county court of Adair county, Okla., in the matter of the estate of Nancy Eli, which appearance docket purported to state that on November 17, 1908, an order had been entered by said court appointing said administrator as alleged; that at the time said certified copy was offered in evidence, the plaintiffs objected thereto and such objection was overruled to which the plaintiffs excepted and such certified copy was admitted in evidence; that near the close of the trial the plaintiffs renewed their objection to said evidence (quoting the language of counsel) 'for the reason that it is incompetent, irrelevant, immaterial, and inadmissible and the orders of court cannot be established by entries upon an appearance docket; such entries have no probative force and effect whatsoever.'
"That thereupon the court sustained such objection, saying: 'The Court: Gentlemen, it looks to me like the objection is good. That *Page 294 is not the proper way to establish it. The objection will be sustained.'
"Thereupon the defendants took an exception. That this defendant avers that upon another trial of this case, it is informed and believes and alleges the fact to be that it will be able to and will furnish competent proof showing such appointment, and that at all the times when the instruments upon which this defendant relies were approved by the county court of Adair county, Taylor Eli was the duly appointed, qualified, and acting administrator of said estate and said administration proceeding was pending in said Adair county court."
The defendants further sought to inject into the controversy another defense as follows:
"That prior to the time of the bringing of this suit, the said T.C. Wilson, deceased, an attorney at law duly licensed to practice law in all the courts of this state, and R.E. Tucker, as this defendant believes and alleges the fact to be, had formed a conspiracy, the object of which was to rake up an old claim for a purpose purely speculative agreeing together to bring suit thereon and divide the spoils in case of success and in so doing violated a criminal statute of the state of Oklahoma which prohibits an attorney at law from buying claims with intent to bring suit thereon, such statute being section 1686 of the Comp. Stats of Oklahoma of 1921; that at the time Wilson took his conveyances from the Indian plaintiffs, alleged upon in the amended petition, he had an agreement with the plaintiff, Tucker, as this defendant believes and alleges the fact to be, whereby Wilson and Tucker were to finally acquire in full the alleged claims of the Indian heirs to the land involved and all rights incidental thereto; that at the time the trial started, this defendant had no knowledge of the matters alleged in this paragraph and its original answer and cross-petition contains no reference thereto; that upon the trial of this cause it first learned of the matters herein alleged; that because the deeds procured by Wilson and Tucker from the Indian heirs had their inception in the violation of the criminal statute, they are wholly void and the said Wilson and Tucker and those claiming under them are not entitled to any relief herein."
The disposition made of these applications for permission to file amended pleadings appears at page 503 of the case-made as follows:
"Mr. Barry: We ask the court to rule upon the applications of the defendants for permission to file amended pleadings.
"The Court: The court is of the opinion at this time that the decision of the Supreme Court which was rendered in this case is conclusive as against the separate defense that the former adjudication so far as this court is concerned is res judicata."
Again at page 548 in the journal entry of judgment made by the trial court September 12, 1928, the trial court recites:
"The court further finds that by virtue of the decision of the Supreme Court of the state of Oklahoma upon the appeal heretofore had herein the deeds under which the defendants Glass and Calvert claimed, are void and the oil and gas mining leases under which the Carter Oil Company and Tidal Oil Company claim are void except that the lease executed upon the undivided one-fourth interest inherited by James Eli under which the Carter Oil Company and Tidal Oil Company claim, is in all respects valid and existing and the validity thereof has not been questioned herein, but all parties have at all times conceded the same to be valid and it is ordered that said deeds and said oil and gas mining leases with the exception of the James Eli lease be and the same hereby are canceled and held for naught and the title of the plaintiff, T.P. Wilson, administrator of the estate of T.C. Wilson, deceased, and R.E. Tucker, is quieted as against all claims of Glass and Calvert, the Carter Oil Company and Tidal Oil Company in and to said land except as to the valid lease formerly held by the Carter Oil Company and now by Tidal Oil Company covering the undivided one-fourth interest in said land inherited by plaintiff, James Eli, and that the improvements, equipment, machinery, and appliances installed, erected or constructed upon said land for the purposes of developing the same and producing oil therefrom, is vested in the said T.P. Wilson, administrator of the estate of T.C. Wilson, deceased, and R.C. Tucker, subject only to the one-fourth interest of the Tidal Oil Company, and the Carter Oil Company and all other defendants are hereby enjoined and restrained from removing, altering, damaging, or destroying any of said property, equipment, machinery, and appliances that are now upon said property or which have been placed upon said property and charged against the said property as an item of cost or production, to which rulings the defendants, the Carter Oil Company, Tidal Oil Company, and Glass and Calvert, each except."
It will thus be seen that the judgment of the trial court, so far as the title to the land was concerned, was entered expressly in accordance with the mandate. And so far as title to the land is concerned, this appeal is an attempt by the defendants to appeal from a judgment on the former mandate.
At the outset it thus appears that this court is now confronted with the question of *Page 295 the finality of the former judgment. Since the former appeal there has also been injected into this cause certain collateral matters affecting title, which, as the record stands, must also be noted. These grow primarily out of an application presented to the trial court in this cause by Wilson and Tucker for injunctive relief against the defendants herein, their Indian coplaintiffs, and Sams and Raymond, attorneys at law of Nowata.
The record discloses that just three days before the final mandate was issued from this court after the Supreme Court of the United States had denied certiorari, the Indian plaintiffs in this cause were taken to the office of Sams and Raymond, attorneys, of Nowata, Okla., where they executed a contract under the terms of which they purported to employ Sams and Raymond to bring suit against Wilson and Tucker to set aside the contract by which Wilson was employed as attorney for the Indians and the Tucker deeds.
The Sams and Raymond petition so filed, charged, in effect, that Wilson had procured the signature of his Indian clients to the attorney's contract and conveyance by false and fraudulent representations concerning the nature of the instruments; that Wilson and Tucker had been secretly engaged in a conspiracy to defraud the Indians; that the consideration for Tucker's deed was grossly inadequate and that the consideration was not in fact paid. Upon these grounds they sought to have Wilson's contract of employment as attorney and the Tucker deed adjudged void and canceled. Upon the filing of that action by Sams and Raymond, Wilson and Tucker in the case at bar filed in this cause their application for injunction to enjoin prosecution of the suit by Sams and Raymond upon the ground that such suit was being prosecuted for the benefit of the defendants in this suit, and that the defendants herein had conspired with Sams and Raymond to have such action filed so that the judgment and mandate heretofore entered in this case could not be enforced.
In view of the nature of the charges made in the application for an injunction, the manner in which the Sams and Raymond suit originated deserves careful scrutiny. Particularly is the manner in which Sams and Raymond obtained employment from Wilson's Indian clients of interest, since in their petition they make allegations, which the whole evidence without contradiction abundantly demonstrates are false and unfounded, to the effect that Wilson, another attorney, now deceased, had been guilty of conspiracy, had faith and fraud in procuring employment by the same Indians.
E.E. Sams, who personally seems to have handled the entire litigation for his firm on behalf of the Indians, was himself called as a witness for the plaintiffs in support of their motion for an injunction. He testified that a George Anderson, whom he thought lived at Tulsa, but was not certain, called him by 'phone and talked about bringing the Indians into Sams' office; that he did not know where George Anderson was talking from; that he first got acquainted with the Indians when they appeared at his office with an interpreter and told him their story; that their interpreter was John Bunch and that George Anderson was along. Asked whether the contract of employment was approved by the county court, Sams replied that it was. "The matter was handled by Mr. W.A. Woodruff, of Stilwell, an attorney," Sams testified, stating further that neither he nor Mr. Raymond was present in the county court when the contract was approved and he did not know whether the Indians were present or not. Sams further testified that he rather assumed that George Anderson paid the expense of having these Indians come to see him; that he knew George Anderson paid some of the hotel bills or meals or something of that kind. Sams, on being asked specifically whether he had any conference with a bank officials at Stilwell about the Indians' expenses, testified that the Indians had to have a little expense money in order to come to see him with reference to the case, and that "I rather think that I told the banker that I would see that that was paid." He said he did not have any recollection as to the amount of his guaranty, but that his recollection shows that it was something like $100, but would say positively that it was less than $150 all told. Asked whether he guaranteed the payment of certain notes at the bank, he replied:
"I didn't have anything to do with making the notes, this was an after consideration. I didn't even know for sure that the bank had furnished the money for them to come up here at the time they came up."
At page 207 of the case-made, the following appears:
"Q. Mr. Sams, what interest, if you know, did George Anderson have in this matter? A. None that I know of. Q. Sir? A. None that I know of." *Page 296
Anderson remains to the record the mysterious stranger who instigated the Sams and Raymond suit at a strategic point in the history of the case at bar.
The Indians were not produced as witnesses at the trial by Sams and Raymond, who purported to represent them, nor is any reason apparent why they were not. The Indians testified by deposition in favor of Wilson and Tucker who placed their evidence in the record. When such depositions were offered in evidence, Sams interposed an objection to the introduction of the testimony of the very clients he purported to represent. In their testimony, the Indians, admitting they had signed the Sams and Raymond contract, stated that immediately upon signing the contract, they had "scattered out;" that they had not appeared before the county court to have the contract approved and did not know that suit had been filed.
One of the grounds upon which Sams and Raymond seek to have Wilson's contract vacated is that the attorney's fees provided by it are excessive. Yet the record discloses that Sams and Raymond took a contract providing a similar fee of 50 per cent. to themselves.
It is difficult to see what benefit the Indians could derive from the Sams and Raymond lawsuit. If, as they insist, Wilson had no authority to represent the Indians in the first instance and obtained a contract to do so by fraud, obviously, they could not repudiate his employment and at the same time claim the benefit of the long court flight he had made to establish their interest in an inheritance. The only real beneficiaries of the Sams and Raymond suit, if it succeeded, would be the defendants herein. The trial court denied an injunction solely upon the ground that Sams claimed he could not get one of the Indians in court, and did not want to put part on the stand unless all were there.
If the evidence was not sufficient to support the charge that the Sams and Raymond suit was instigated by the defendants herein to obstruct the mandate in this case, standing as it does, wholly uncontradicted, it is certainly sufficient to taint these new proceedings with grave suspicion. Champerty and maintenance — the inciting of groundless litigation — if established by the record, are equally to be condemned whether committed by one litigant or the other.
With reference to the validity of the Wilson and Tucker deeds, the trial court found as follows:
"The Court: The court finds, from the evidence adduced in this case, that there is no evidence of any nature tending to establish any fraud, and, inasmuch as the court has by its judgment decreed and found that the instruments were executed in good faith, now holds that the said instruments and each of them pertaining to the respective rights of Wilson and Tucker were executed in good faith."
In my opinion, under the evidence, this finding by the trial court is not only correct, but no other could properly have been made.
It should be further judicially noted that since the former opinion of this court, a bitter political fight was made upon former Chief Justice Fred P. Branson who wrote that opinion; that the correctness of that opinion was made a campaign issue; that Mr. Justice Andrews, elected in that campaign, when this case was reached on the docket, quite properly promptly certified his disqualifications.
Defendants Carter Oil Company et al. assert herein that the Indian plaintiffs are being defrauded by Wilson, their attorney, and Tucker, their second grantee; that the consideration paid for the deeds approved in Cherokee county was grossly inadequate and seek to avail themselves of this defense to bolster up their own title.
Turning to the question of the effect of the former opinion and judgment herein, it appears to me that the correctness of the former judgment of this court is not properly before us for review. Every question of either fact or law on the question of title was before the court on the former appeal and then decided. A careful examination of the record and the opinion in that case and the majority opinions herein will show no material fact overlooked in the former opinion and no controlling legal proposition not considered.
This is an effort to appeal from a judgment on a mandate so far as title to the land is concerned. The right to appeal from a judgment of the trial court upon a mandate of this court necessarily assumes that the trial court possesses jurisdiction to review the mandate; otherwise, there is nothing from which an appeal may be taken. If this should be conceded as the law, there would be engrafted into the judicial machinery of this state a perpetual motion *Page 297 contraption that will permit contrary litigants with plenty of money to keep the courts grinding on their lawsuits forever. All petitions for rehearing on the former appeal were heard and denied. No proceedings to set aside the judgment have been filed in the trial court. Neither a direct nor a collateral attack upon the former judgment of this court has been instituted. Only briefs arguing its invalidity are before us. If final judgments may be attacked and set aside in the fashion attempted here, no decision in the reports is beyond attack, and the security of all titles and property rights vested by court decrees in former years, is imperiled.
I regard no rule of law founded on sounder grounds nor more firmly established than that announced by this court in Hill v. Hill, 71 Okla. 312, 178 P. 94, as follows:
"An appeal will not be entertained by this court from a judgment and decree entered in the district or another inferior court, in exact accordance with the mandate of this court upon a previous appeal."
Supporting the decision, many authorities are cited, among them Oklahoma Gas Electric Co. v. Baumhoff, 21 Okla. 503,96 P. 758, which case is the leading case in this state for the rule announced in the Hill Case, and has been cited and approved to the rule in no less than 28 cases by this court in former years. (See Shepard's Oklahoma Citations; Hill v. Hill,71 Okla. 312, 178 P. 94.)
In Thomas v. Thomas, 27 Okla. 784, 109 P. 825, 113 P. 1058, 35 L. R. A. (N. S.) 124, this court in the syllabus held:
"Where, after a decision of a case and rendition of an opinion in this court, its mandate is regularly transmitted to the trial court, and is spread upon its records, this court, in the absence of fraud, accident, inadvertence, or mistake, is without jurisdiction to recall the mandate and entertain a petition for rehearing, and a motion for leave to file the same will be denied."
And in the body of the opinion this court said:
"One of the best-considered cases confirming our view on this subject is that of Ott v. Boring, 131 Wis. 472, 110 N.W. 824, 111 N.W. 833, 11 A. E. Ann. Cas. 857, in which that court, citing a larger number of state and federal authorities, said:
" 'The question of the period of jurisdiction of purely appellate courts is a somewhat intangible one, and not to be decided always upon the same principles and considerations as those which regulate the jurisdiction of the courts of general jurisdiction, having the function not only of trial and judgment, but also of execution of the judgment. It seems from an examination of the authorities to be well-nigh unanimously declared that, in the absence of statute making a different provision, the jurisdiction of the appellate court over a given cause terminates whenever regularly, without inadvertence or fraud, it returns the record to the court of general jurisdiction. 2 Enc. Pl. Pr. pp. 359, 384; 2 Spelling, New Tr. App. Prac. secs. 733, 734; Hayne, New Tr. App. sec. 293; Legg v. Overbagh, 4 Wend. (N.Y.) 188; cases collected in note, 21 Am. Dec. 118; Delaplaine v. Bergen, 7 Hill (N.Y.) 591; Browder v. M'Arthur, 7 Wheat. 58, 5 L. Ed. 397; Peck v. Sanderson, 18 How. 42, 15 L. Ed. 262; Underhill v. Jericho,66 Vt. 183, 28 A. 879; Sullivan v. Speights, 14 S.C. 358; Caldwell v. Bruggerman, 8 Minn. 286 (Gil. 262); Dempsey v. Billinghurst, 7 S.D. 564, 64 N.W. 1124; Leese v. Clark,20 Cal. 387; Richardson v. Chicago Packing Provision Co.,135 Cal. 311, 67 P. 769; Ward v. Springfield F. M. Ins. Co.,12 Wash. 631, 42 P. 119; State ex rel. Haskell v. Faulds, 17 Mont. 140, 42 P. 285. This apparently rests largely upon the doctrine that, when that act is done, the jurisdiction of the lower court, which has been suspended meanwhile, becomes re-established, and that both courts cannot have jurisdiction over the cause. Generally too, it is held, in the absence of statute, that the power of an appellate court over its judgment, like that of courts generally, persists to the end of the term at which the judgment is rendered, and then absolutely terminates except as it may be terminated earlier by the retransmission of the cause to the trial court.' The foregoing case may also be found reported in 11 A. E. Ann. Cas. 857, where it is extensively annotated, cases being cited from nearly, if not quite, every state in the Union, as well as the federal courts, and the general rule deduced from them all by the author of the annotation is in accord with that we herein announce, and is to the effect that the jurisdiction of anappellate court over a case ceases when it has regularlydetermined the issues involved, and caused its judgment inconformity with such determination to be entered, and the caseis remanded to the lower court for such action as may benecessary. Among the authorities which we have examined, and which have not been heretofore mentioned, either in this opinion or in the case of Ott v. Boring, supra, in support of this rule, may be noted the following: Horton v. State,63 Neb. 34. 88 N.W. 146; Merchants' Nat. Bank v. Greenhood, 16 Mont. 396, 460, 41 P. 250, 851; Merchants' Nat. Bank v. Grunthal,39 Fla. 388. 22 So. 685; Rowland v. Kreyenhagen, 24 Cal. 52; Trumpler v. Trumpler, 123 Cal. 248, 55 P. 1008; Putman v. Clark, 35 N.J. Eq. 145; *Page 298 Bullion Min. Co. v. Croesus Gold S. Min. Co., 3 Nev. 336; Finlayson v. Kirby, 127 N.C. 222, 37 S.E. 223; Lubbock v. Vince, 5 Tex. 415; Hopkins v. Gilman, 26 Wis. 512; Rud v. Pope County, 66 Minn. 358, 68 N.W. 1062, 69 N.W. 886; Seaboard Air Line R. Co. v. Jones, 119 Ga. 907, 47 S.E. 320; Zorn v. Lamar,71 Ga. 85; Phelps v. Davis, 2 J. J. Marsh, 368."
In Wellsville Oil Co. v. Miller, 48 Okla. 386, 150 P. 186 189, the court said:
"It was the duty of the court, without motion or other act ofdefendants, to have proceeded to make such order as would fully comply with the said mandate of this court, 'to take such other and further proceedings herein as shall accord with said order and right and justice in the premises.' Said mandate not only vested the trial court with jurisdiction to make the order, disbursing the funds held in said court by virtue of said stipulation, which was made a part of the original judgment in the trial court, and the judgment affirmed by this court, but it was the duty of said court to make said order especially in view of the fact that the case had been fully adjudicated and finally disposed of in this court, which said order is not an order from which an appeal lies to this court. * * *"
It will thus be observed that the former judgment is not only the law of this case, but is res judicata upon every question involving title to the land in controversy. This is true because when final judgment is pronounced by a court of competent jurisdiction, the cause of action itself is extinct — it passes in rem judicatem. The foundation of the doctrine of both res judicata and the law of the case is that the parties have had their day in court; their rights have been put in issue and finally determined by a court of competent jurisdiction. It is the theory of the law that matters which have once been fully investigated between the parties and determined by the court, shall not again be contested, and that the judgment of the court upon matters thus determined shall be conclusive upon them. The parties having either been heard or having had an opportunity to be heard, it is in the public interest that litigation not be indefinitely protracted.
Nor does the effect of a former judgment depend upon its correctness, and it is no less conclusive because based upon a mistake of law. Similarly a judgment concludes not only matters that were in issue, but matters that might have been pleaded as a defense; if a party through oversight or neglect omits to make a defense, he is none the less bound, and a final judgment concludes both legal and equitable defenses. Johannessen v. United States, 225 U.S. 227, 65 L. Ed. 1066; Baker v. Cummings, 181 U.S. 117, 45 L. Ed. 776; Miles v. Caldwell, 2 Wall. 35, 17 L. Ed. 755; Williams v. Armroyd, 3 L. Ed. 392; Wilson's Ex'r v. Deen, 121 U.S. 525, 30 L. Ed. 980; American Express Co. v. Mullins, 212 U.S. 311, 53 L. Ed. 525; Frank v. Mangum, 237 U.S. 309; 59 L. Ed. 969; and Dowell v. Applegate,152 U.S. 327, 38 L. Ed. 463, are among the many cases by the Supreme Court of the United States announcing the foregoing principles.
Pioneer Tel. T. Co. v. State, 40 Okla. 417, 138 P. 1033; Prince v. Gosnell, 47 Okla. 570, 149 P. 1162; Kingfisher Imp. Co. v. Talley, 51 Okla. 226, 151 P. 873; Grimmett v. Grimmett,80 Okla. 176,195 P. 133; Oklahoma Moline Plow Co. v. Smith,81 Okla. 61, 96; P. 962, are among the many previous decisions of this court which also adhere to it.
The case of Prince v. Gosnell, supra, was an action in ejectment to recover a certain lot in the town of Frederick. Because of defects in the petition, a demurrer was sustained. The plaintiff elected to stand upon his petition and appealed to the Supreme Court, where judgment was affirmed. After judgment of the Supreme Court, new issues were attempted to be injected into the cause. The question presented was whether the former judgment constituted a bar. This court in an opinion by Mr. Justice Hardy cited with approval Engle v. Legg,39 Okla. 475, 135 P. 1058, to the rule that:
"Judgment in a former action involving the same subject-matter is conclusive not only as to defenses which were permitted in such action, but also as to all defenses which might have been presented."
Citing other cases, this court held the former judgment binding as to every matter which might have been pleaded or given in evidence, whether the same was in fact pleaded or not.
This court, in an opinion by Mr. Justice Hefner, it seems to me, correctly stated and followed the rule of the law of the case in Doyle-Kidd Dry Coods Co. v. Ingram, 126 Okla. 161,259 P. 211, as follows:
"This court having held on a former appeal that the trial court should have directed a verdict for the defendant at the close of all the evidence, and, inasmuch as there is no substantial difference in the facts presented in this case from those presented in the case when it was here before, the decision of the former appeal is controlling."
The rule has been more recently reiterated *Page 299 in White v. American Law Book Co., 157 Okla. 32,10 P.2d 699, where in the second syllabus paragraph, this court announced the rule to be that:
"Judgment in former action involving same subject-matter is conclusive, not only as to defenses raised, but also as to all matters which might have been presented under pleadings."
But it is argued that this case comes within the exception to the general rule, that a manifest error has been committed and grave and serious injustice will result from adherence to the former judgment. In this I cannot agree.
Particular note is made of the admission of the defendant Carter Oil Company that the only evidence tendered to show administration proceedings in Adair county at the former trial was a certified copy of the appearance docket in case No. 301 in the county court of Adair county, which evidence was stricken from the record by the trial court. As the record stood before and now stands before this court, there is no evidence in the record of administration proceedings of any character in Adair county.
The question as to which county court was that having jurisdiction of the estate of Nancy Eli after the final account of the administrator was approved by the county court of Cherokee county, within the meaning of the congressional act vesting in such court authority to approve full-blood deeds of Nancy Eli, is a novel one, and one upon which the court then and now is guided by no altogether satisfactory judicial precedent. The reasoning of the former opinion is sound. Nancy Eli never lived in Adair county, for she died long before the county came into existence. Jurisdiction of the settlement of her estate, if determined by the laws in force during her lifetime, or at her death, was certainly by proper proceedings vested in the county court of Cherokee county and not elsewhere. At no time since the Adair county court was created has she ever lived in that county or had property there of any kind whatever subject to administration. To say that laws enacted after her death and conditions occurring after a full and complete administration upon her estate, either divested the Cherokee county court of jurisdiction, or vested jurisdiction elsewhere, to do what had already been completely done, is certainly of questionable legal soundness. Such a conclusion amounts to deciding that jurisdiction may exist where there is no conceivable judicial act to be performed. This result it seems to me is an unsound novation in the law.
But it is not necessary for the purposes of this case for us to find that the former opinion is the opinion the present court would adopt were the case before us for the first time. The correctness of the former opinion is at least debatable, and we are directly confronted with the doctrine of the law of the case and of res judicata, which upon principle and under facts such as here, is much stronger than the doctrine of stare decisis. For, in making the law of this case, in the former adjudication of the precise question at bar, the parties herein played an important part. They made the record in the trial court and here. They advanced for the court's consideration presumably every question of fact, every issue of law that they deemed advantageous to their contentions. If they omitted or neglected material matter, they are in part responsible if it was not considered; on the other hand, were the question one of stare decisis, it might well be urged that the court's attention had not been called to controlling issues in the former case to which the precise litigants were not parties.
To the doctrine that courts should be ever ready to right their own wrongs, I subscribe. Yet somewhere, some place, there must be a final determination of the question of who is right and who wrong. The shifting personnel of the court should not determine the law, and litigants should not be encouraged to prosecute numerous appeals in the hope that other judges may decide the same question differently.
Moreover, gravest considerations of public policy require that litigation not be so protracted as to invite and permit financially powerful litigants, aggrieved at the decision of one group of judges, to go to the hustings, defeat the judge or judges who decided adversely to them, and then resubmit the same case.
The peculiar vice of the instant practice will become apparent when it is noted that the former opinion when finally handed down was concurred in by all eight of the justices who heard it; that four of the justices of the present court agree that the former opinion should stand. One of the learned justices, who concurred in the former opinion, now concurs with the majority. Of seventeen justices of this court who have considered the respective rights of the parties, only five are found to say that the defendants are entitled to hold the land. How can it be *Page 300 argued that such a judgment is grossly and manifestly wrong? Because five constitutes a majority of the nine judges who last heard this case, their opinion becomes the law. But how can court judgments so reached enjoy the full measure of public confidence and respect upon which, ultimately, their whole usefulness and authority depends?
Any judicial system where men are judges must be founded upon a concession that in some cases their decisions may be wrong. And often men differ as to what is right and what wrong. Otherwise, there would be no need for nine minds upon the bench or twelve upon the jury. But when a case has once been fairly tried and finally decided by the highest courts of the land, that should end the matter. A final judgment should never be disturbed except for the reasons and in the manner prescribed by the statutes. That considerable sums of money are involved should in no way alter the rule.
With reference to the attorney's contract and the Tucker deeds, a careful inspection of the records now before us fails to reveal any sufficient fact or circumstance tending to show that at the time the attorneys contract with Wilson was consummated or thereafter, any collusive agreement of any kind existed between Wilson, the Indian's attorney, and Tucker, who purchased their lands. The statutes of this state, section 4205, C. O. S. 1931, specifically authorize employment of attorneys at law upon a contingent fee basis. This provision of the law is obvious for the benefit of poor persons who otherwise could not employ counsel. That champerty statutes of Oklahoma, both by their terms and by previous decisions of this court, do not apply to a sale of Indian lands by the allottees or the heirs of such allottees of their inherited interest therein, seems well settled. Section 1940, O. S. 1931, a proviso of which the majority opinions seem to have overlooked, expressly exempts conveyances of interests in allotted lands by restricted Indians from its operations. The first syllabus paragraph in Sells v. Mooney, 79 Okla. 34, 190 P. 861, an opinion of this court by Mr. Justice Bailey, states the applicable rule as follows:
"1. Indians — Alienation of Land — Champerty. Where a restricted Cherokee Indian during such restrictions attempts to convey by deed a portion of his allotted lands, and his grantee enters into and holds possession thereof for more than one year, and subsequently, after the removal of such restrictions, said Indian by warranty deed conveys to another, the validity of the second conveyance is not affected by the champerty statute (section 2260, Rev. L. 1910), as the alienation of such land is controlled by congressional enactment.
"2. Same — Rule of Property. The doctrine of 'rule of property' cannot be applied to render valid conveyances made in violation of governmental policy, nor can decisions of this court rendered subsequent to the execution and delivery of the deeds relied upon be invoked to establish a rule of property to validate such deed."
Other cases announcing the same rule are: Whitmire v. Levine,80 Okla. 21, 193 P. 884; Culp v. Bronaugh, 97 Okla. 198,224 P. 175; Denny v. Ackers, 117 Okla. 274, 274 P. 34.
No serious question seems to have been raised by the Indians nor any one purporting to represent them, as to the reasonableness of the fee charged by Wilson, nor the adequacy of the price paid by Tucker for the Indians interest in the land at the time the trial court in 1924, held the deeds of the defendants in the litigation to be valid and the Wilson contract and Tucker deed void. Nor were such questions raised during the years from then to May, 1928, during which time the cause was pending in the Supreme Court of the state of Oklahoma and in the Supreme Court of the United States. It is in evidence that during this period of time, the Indian grantees, who had sold to Tucker, counted themselves lucky for having sold, since their grantee, Tucker, had lost the case. Two county judges approved the transaction with full knowledge of all the details. One of the judges, having in mind all the circumstances, testified that he regarded the consideration paid by Tucker at the time as adequate; that he counted out the money in cash to the Indians in his office. Doubtless, knowledge of the certainty of a long and expensive court fight to get the land if the Indians owned it entered into the calculations of all parties. But in view of consideration hereinafter mentioned, I do not for the purposes of this case regard it as material whether the Indians received adequate consideration for the land or not. The trial court perhaps out of an abundance of precaution denied the application of Wilson and Tucker for an injunction to prevent prosecution of the Sams and Raymond lawsuit, and that case so far as the records show is still pending.
The majority opinions take refuge in equity to escape the results, which it seems to me, the plain letter of the law makes unavoidable in this appeal. Whether a mandate of this court is final or not, which I deem controlling *Page 301 herein, is certainly a question of legal and not equitable cognizance. Similarly, whether the deeds the Indians first executed in 1916 are or are not valid is a pure question of law, and if they are void at law, equity should follow and not supplant the law. But equity, reason the majority opinions, prevents the raking up of old claims and their assertion years after to disturb the possession of those who have bought and at great expense developed rich oil holdings. Whether the Indians and their grantees are barred by limitations is again, however, a plain question of law. Only some eight years elapsed from the date the defendants took deeds and possession of the Indian lands until suit to recover was instituted. If defendants were in possession under void deeds, as plaintiffs assert, the statutes of the state (sec. 99, O. S. 1931) prescribe 15 years as the time within which suit may be timely brought to recover the property. Full-blood Cherokee heirs of allotted lands might have more and certainly could have no less time in which to assert their rights. This again is a question of law, governed by express statute rather than equity. And plaintiffs' suit in ejectment was clearly at law. As such the case was and is, it seems to me, controlled by the written Code, which defines the rights of the parties, rather than some unwritten one reposing in our consciences as chancellors. I do not think that courts in the face of written statutes should adopt for themselves their own ideas of what is right and what wrong. It was doubtless because of dissatisfaction with the rules of conduct, reposing only in the consciences of the lawgivers, that mankind so early adopted written codes. And where the written law is plain, I regard adherence to its mandate as the first duty of the judges of every court.
Yet I have not failed to consider the equities which the learned majority advance in support of their opinions. It is argued that the Indians were not adequately paid by Wilson and Tucker for their rights in the land in controversy. Yet it is decided that the deeds which they gave were void. Surely itcannot be said that $750 is not enough to pay for a void deed. And if it be true that the Indians were not adequately compensated for their rights in the land, the land should be restored to them. A suit to recover the land for them is still pending. It does not promote the ends of justice to take this valuable land from the Indians, if it was theirs when this suit was filed, and award it to the Carter Oil Company and its codefendants just to keep the Indians from paying too big a fee to their lawyer or to keep Tucker from buying the land too cheap.
It is traditional that from the days of William Penn and Peter Minuet, the Indian race has been the victim of the superior intelligence and business sagacity of the white man. In the always eager and sometimes greedy and unscrupulous race to obtain the rich oil lands of the Five Civilized Tribes, it cannot be said that pioneers in the oil industry, merely because they were first purchasers of rights in Indian allotments, were animated by merely altruistic motives. With the aid of an army of expert geologists and scouts, often with full knowledge that allotted lands were underlaid with fabulous wealth in oil, the rights of the Indian owners have as a rule been acquired for a trifle when the purchaser alone had knowledge of its potential value. The record indicates that the defendants paid the Indians in this case less than $4,000 for the land before any oil from it had been extracted; that this land has already produced over $280,000 worth of oil. Rare indeed have been the times when more than nominal sums were paid to Indians for oil leases upon their allotted lands, even in cases like this, where the government supervised the sale.
The white man drew the leases and the deeds and the laws under which they were to be construed, and, except where a positive statute forbade the sale, what the Indian had left as a general rule was just an oversight. It is because of a knowledge of this fact that I have scant sympathy for the attempt of those in possession of rich holdings in Indian oil lands when made defendants in suits of this character by Indian claimants to the land to draw the holy cloth about themselves, to plead the inequity of the Indian's claims, and to assail the ethics of his attorney. When the Indian gets himself a lawyer who teaches him the ways of the white man's laws on a contingent fee basis, of what concern is it to the defendant what attorney's fee he pays? Or whether his lawyer has been guilty of some breach of legal ethics? I would not be understood as condoning unethical conduct on part of attorneys, but it seems to me that correcting abuses of that character where they exist is more properly left to the State Bar Commission.
Or if the Indian sells his interest in the land in strict accordance with the law — if he gets something for what the adverse claimant says is worth nothing, how does it lie in the defendant's mouth to defend on *Page 302 the ground that the Indian is being defrauded? If concern on part of the defendants for the Indian's rights is sincere, they should first admit that the Indians owned property and offer to restore it to them. It seems to me that the question properly before the court on the former appeal was whether the Indians owned any interest in the land of which they could be defrauded. If they did, whether Wilson and Tucker dealt fairly by them can be decided when the case presenting that issue is brought before this court.
Moreover, I cannot subscribe to a procedure by which, on no more substantial grounds than appear herein, a trial judge is twice reversed by this court on the same question in the same case, once when he decides the question one way, and again when he decides it the other way.
No better illustration of the sound policy which requires that there be an end to litigation can be found than that evidenced by the record in the case at bar. This record discloses that a suit begun in 1924 has been to the Supreme Court of the United States and back again, twice tried in the trial court, and twice in this court, yet the parties are precisely where they started. The present appeal was lodged in this court January 1, 1929. Many other appeals that have been here equally as long and some that have been here longer, remain undisposed of. It is of grave public concern that litigants not be permitted to take up the time of the court with endless appeals presenting the same question.
In May, 1928, this court by its mandate awarded possession of the land in controversy to the plaintiffs. As the record now stands, that mandate has been superseded with a $15,000 bond, notwithstanding the record shows that this court once fixed supersedeas at $350,000 for appeal when even less was in issue. Apparently the reason this case is not before the court, so far as possession of the land is concerned, is because the Carter Oil Company and its codefendants have ignored the former judgment. It is even suggested by the majority that the trial court did not observe the mandate. It seems to me that a more effective remedy for that condition, if true, can be found than to vacate the judgment. We ought not invite trifling with this court's mandates.
If judgments of the highest court of this state are to be lightly regarded, if they are to be set aside merely because later judges think the case should have been decided differently, it seems to me that judicial decisions become mere literary essays, interesting and instructive to read, but decisive of nothing and binding on no one. It is a recognition of this fact that makes the doctrine of the law of the case, along with the doctrines of stare decisis and res judicata, indepensable to our system of jurisprudence. Adherence to these salutary doctrines give a confidence to litigants that the courts will interpret and apply the law and not make it; that the law will be the same to that branch of the government to which it was assigned by the Constitution — the Legislature.
For the reason stated, I dissent from the opinion and special concurring opinions of the majority.
I am also authorized to announce that Mr. Justice CLARK concurs in this dissenting opinion.