Motion for new Trial Unnecessary. Misjoinder Inasmuch as all of the errors complained of are matters of law, arising upon the record without the aid of a bill of exceptions, a motion for new trial was not a necessary condition precedent to the right of appeal. Severs vs Trust Co. 1 Ind. T. 1 (35 S. W. 233;) Little vs Railway Co. 2 Ind. T. 551 (53 S. W. 331.)
There are two specifications of error: (1.) That the court erred in overruling defendants’ demurrer to the complaint; (2) that the court erred in sustaining the motion of plaintiffs for judgment on the pleadings for possssion and costs.
The demurrer raises the question as to whether the Cherokee Nation and a citizen of said nation may join in a suit to dispossess a person of lands held under the claim of Cherokee citizenship, after such claim to citizenship had *484been adjudicated against him by the commission to the Five Civilized Tribes or by a United States court. The statute provides:
“Sec. 2. That when in progress of any civil suit, either in law or equity, pending in the United States Court in any district in said territory, it shall appear to the court that the property of any tribe is in any way affected by the issues being heard, said court is hereby authorized to make said tribe a party to said suit by service upon the chief or governor of the tribe, and the suit shall thereafter be conducted and determined as if said tribe had been an original party to said action.
“Sec. 3. That said courts are hereby given jurisdiction in their respective districts to try cases against those who may claim to hold as members of a tribe and whose membership is denied by the tribe, but who continue to hold said lands and tenements notwithstanding the objection of the tribe; and if it be found upon trial that the same are held unlawfully against the tribe by those claiming -to be members thereof, and the membership and right are disallowed by the commission to the Five Tribes, or the United States court, and the judgment has become final, then said court shall cause the parties charged with unlawfully holding said possession to be removed from the same and cause the lands and tenements to be restored to the person or persons or nation or tribe of Indians entitled to the possession of the same. * * *
‘ ‘Sec. 6. That the summons shall not issue in such action until the chief or governor of the tribe, or person or persons bringing suit in his own behalf, shall have filed a sworn complaint on behalf of the tribe or himself, with the court, which shall, as near as practicable, describe the premises so *485detained, and shall set forth a detention without the consent of the person bringing said suit or the tribe, by one whose membership is denied by it; provided, that if the chief or governor refuse or fail to bring suit in behalf of the tribe, then any member of the tribe may make complaint and bring said suit.” 30 Stat. 495 (Ind. Ter. Stat. Secs. 57q-57z20.
of Parties. From a reading of the statute as above set out, it is clear that the Cherokee Nation may have brought the suit without joining the prospective allottee, and, in case of its failure to bring the suit at ■ all, its co-plaintiff could have done so without joining the Cherokee Nation. But the statute provides, as to this class of cases, ‘ ‘that, if the chief or governor refuse or fail to bring suit in behalf of the tribe, then any member of the tribe may make complaint and bring said suit. ” It seems clear from this statute that the chief or governor is to take the initiative, and bring the suit, and only in case of his failure or refusal to do so would another member of the tribe be authorized to bring the suit; and, to justify it by a member of the tribe, it must appear from the complaint that the chief or governor had refused or failed. The complaint makes no such averments, and in fact could not have done so, because the nation is made a party to the suit by it. The demurrer, therefore, should have been sustained, and the cause dismissed as to Claude Shelton.
*486Judgment on P1ead~ngs. *485The next and last question presented is, did the trial court err in entering judgment for possession and costs against the defendants on the motion of the plaintiffs? This action was brought under the third section of the statute above set out. The complaint specifically alleges that the defendants’ claim to be members of the Cherokee Nation had been adjudged and disallowed by both the commission and the United States court, and that they were in *486possession of the premises sued for. Both of these averments were necessary. The complaint would be fatally defective if either were omitted. Both presented to the court facts necessary to be determined in favor of the plaintiffs before they could recover in the suit. The answers fail to deny the allegation that defendants had been adjudicated to be non-members of the tribe, and, therefore, by our rule of pleading and practice, that averment stands confessed;. and, if that were all, the court would have been justified in entering judgment on the pleadings. But the allegation that they were in possession of the premises, either actual or constructive, was specifically denied. An issue on this question of fact was fairly and certainly presented by the answers. The motion for judgment on the pleadings must be taken, as far as the motion is concerned, as an admission of the truth of all the averments and denials of the answer. The action under the statute is purely a possessory one. The title is not involved, and, therefore, the suit can be maintained only against a party in possession, which must be alleged and proven. If the defendants were not in possession, they were improperly sued, and, that fact being admitted by the motion for the judgment, they were not liable for costs. If the plaintiffs and the court intended to treat the answers simply as a disclaimer, the defendants should have been dismissed from the suit, with judgment for their costs, instead of against them; and if plaintiffs believed, as is suggested in their brief, that the defendants were really in possession of the premises by and through a third party, with whom they were acting in collusion to defeat the rights of plaintiffs, they should have gone to the jury on that issue of fact. There was nothing in the pleading suggesting, much less confessing, such a condition, and therefore there was absolutely nothing before the court to justify it in rendering judgment against the defendants. The judgment of the court below is reversed and the cause remanded.