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Opinion of the Court.

seized" the articles named in the return hereinabove set out.

*

It is plain from the foregoing, as well as from the entire record of the case, that the articles were seized by the sheriff without any complaint or showing, such as the section first above set out requires, and, in fact, before a warrant of any kind was issued. If such complaint or showing was made to the court, it does not appear in the record before this court. It is contended that the seizure may have been made under section 3617, Rev. Laws 1910, which provides that:

"When a violation of any provision of this chapter shall occur in the presence of any sheriff,

it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor, bars, furniture, fixtures, vessels, and appurtenances thereunto belonging so unlawfully used, and to take the same immediately before the court.

The answer to that is that there is no showing or statement of any kind that a violation of the law occurred in the presence of the officer making the seizure, or of any other officer. While the writer hereof is in favor of strict enforcement of the law involved, the same as all other laws, it is certainly going too far to say that an officer may go into a man's place of business and seize the kind and class of articles named in the return of the sheriff, without any warrant or showing that the laws had been violated in the presence of the officer, as required by the statute. Most of the articles seized were of that class of goods that are not ordinarily, and most of them could not be used in the sale of intoxicating liquors. The statute involved is highly penal, and under the authorities must be strictly construed. The motion to quash the re

Bogan v. State.

turn should have been sustained. The court also erred in refusing the defendant the right of trial by a jury. The latter part of section 6, supra, provides :

“If, upon such hearing, any person shall appear as claimant to the property or things seized, or any portion thereof, the issue of fact thus raised shall be tried in the manner provided by law, and judgment shall thereupon be entered accordingly."

In State ex rel. Caldwell v. Hooker, County Judge, 22 Okla. 712, 98 Pac. 964, this court, having under consideration this same question and section of the statute, in the twelfth paragraph of the headnotes use the following language:

“In trials as to property rights under section 6, art. 3, of the enforcing act (Laws 1907-08, p. 605, c. 69), claimants are entitled to the right of trial by jury.”

In the body of the opinion the court, speaking through Mr. Justice Williams, says:

“The presumption is that procedure before magistrates or justices of the peace and county and district courts was contemplated; * that, if any other than the usual procedure was intended, the Legislature would have so expressly declared, and it does not clearly appear that it was the intention of the Legislature that the regularly prescribed procedure of trial by jury before justices of the peace and county and district courts was to be denied to such claimants, or dispensed with in such cases." For the reasons

above indicated, the judgment should be reversed.

*

By the Court: It is so ordered.

Choctaw Lumber Co. v. Coleman et al.

CHOCTAW LUMBER CO. v. COLEMAN et al.

1.

No. 6739. Opinion Filed March 14, 1916.

(156 Pac. 222.) INDIANS—Allotments-Restrictions on Alienation. The policy of Congress in regard to restrictions upon alienation of allotments has been to protect Indians against their own improvidence, whether shown by acts of commission or omission, contracts or torts. SAME-Judgment. The prohibition contained in section 15 of the act of July 1, 1902, c. 1362, 32 Stat. 642, as to affecting or incumbering allotments made under this act by deeds, debts, or obligations contracted prior to the termination of the period of restriction on alienation, applies to a judgment entered against an allottee and his heirs, whether based on a tort or on a contract.

2.

(Syllabus by Galbraith, C.)
Error from District Court, McCurtain County;

Summers Hardy, Judge.
Action by the Choctaw Lumber Company against
T. N. Coleman and another. Judgment for defendants,
and plaintiff brings error, Reversed and remanded.

H. M. Kirkpatrick and J. S. Kirkpatrick, for plaintiff in error.

Thomas Norman, for defendants in error.

Opinion by GALBRAITH, C. This action involves the allotment of John Taylor, a deceased full-blood Choctaw Indian. The plaintiff in error, as plaintiff in the court below, asserted title under duly executed and approved deeds of conveyance from the heirs of the allottee, also full-bloods, while the defendant Coleman claimed title through a sheriff's deed, which had been issued to him

Choctaw Lumber Co. v. Coleman et al.

through an execution sale by virtue of a judgment in his favor against the allottee and his heirs, prior to the allottee's death, rendered in an action for damages for breach of contract. The trial court sustained the title claimed under the sheriff's deed, and denied that claimed under the conveyance from the heirs, and decreed accordingly. The cause was tried upon an agreed statement of facts, the material parts of which appear from the journal entry of judgment:

“Now, on this, the 27th day of February, 1914, this cause came on to be heard, and the plaintiff, appearing by its attorney, H. M. Kirkpatrick, and the defendants by their attorney, Louis A. Ledbetter, same being one of the regular days of the January term of the district court, and both sides announcing ready for trial, and the court being fully advised in the premises, finds :

“That the land involved in this action was duly selected, patented, and allotted to John Taylor, a full-blood member of the Choctaw Tribe of Indians during his lifetime; and that said John Taylor was duly enrolled upon the approved rolls of said tribe as such full-blood Choctaw Indian; and that the restrictions on said lands allotted to said John Taylor were never removed; and that said lands are situated in the county of McCurtain, State of Oklahoma.

“That said John Taylor died intestate in Pushmataha county, Okla., on the 21st day of December, 1912, and left surviving him, as his sole and only heirs at law, Selena Taylor, his wife, and Phelin Taylor, son, Battice Taylor, a son, Susanna Durant, a daughter; and that all of said named heirs at law are full-blood Indians, duly enrolled upon the approved rolls of the Choctaw Tribe of Indians: and that all of said parties were adults at the time of the execution of the deeds to the plaintiff herein.

"That subsequent to the death of said John Taylor, and during the month of December, 1912, there was exe

Opinion of the Court.

cuted and delivered to plaintiff herein, by all of said heirs of John Taylor, deceased, allottee, as hereinbefore set out, warranty deeds conveying the lands allotted to said John Taylor, and involved in this action, and that said deeds were duly and regularly executed, and that plaintiff paid said heirs more than the appraised value in the purchase of said lands, and that said deeds were duly approved by the proper county court having jurisdiction of the settlement of the estate of said John Taylor, deceased, allottee.

“That on the 23d day of August, 1907, the defendant T. N. Coleman filed an action at law in the United States Court in and for the Southern District of Indian Territory against said John Taylor, the allottee, herein, and Phelina Taylor, Battice Taylor, Sarah Taylor, Phelin Taylor, Susana Jackson, and Jency Taylor, for the recovery of the sum of $3,000 and interest for the breach of contract.

“That thereafter, on the 3d day of February, 1909, judgment in said case was rendered against the defendants, including John Taylor, said allottee, and in favor of the defendant herein, for the sum of $3,735 and costs; that a copy of said judgment was duly and regularly filed and docketed in the office of the clerk of the district court of McCurtain county, Okla., on the 23d day of December, 1909; that said Sarah Taylor, Phelina Taylor, and Jency Taylor died subsequent to the rendition of such judgment, and prior to the death of John Taylor, the allottee.

“That thereafter the defendant herein caused an execution to be issued on said judgment, directed to the sheriff of McCurtain county, commanding such sheriff to proceed to levy on said lands involved in this action, and to proceed to sell the same as required by law; that said sheriff, acting thereunder, levied said execution, and offered said lands for sale in pursuance to notice duly given; that said lands were purchased at such sale by the defendant herein; that said sale was duly reported by said sheriff to the district court, and the sheriff ordered to make a deed conveying said premises to the defendant

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