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to that question was in terms granted to the probate court, the county court of Okfuskee county, by the Act of June 14, 1918; and (4) that the court below had plenary jurisdiction and dominion of the subjectmatter and the parties to the suit below, and lawful authority to adjudicate all questions in that suit including the answer to the question who were the restricted heirs of Thlocco until the act of June 14, 1918, was passed. But counsel argue that when that act took effect the exclusive jurisdiction to hear and decide that question was vested in the probate court of Okfuskee county, and that all jurisdiction and power of the court below to determine it was revoked and ceased. In support of this contention they seem to place their chief reliance upon the decisions in Hallowell v. Commons, 239 U. S. 506, 507, 508, 36 Sup. Ct. 202, 60 L. Ed. 409, Pel-Ata-Yakot v. United States (D. C.) 188 Fed. 387, 389, and Parn v. Colfax, 197 Fed. 302, 304, 117 C. C. A. 48, to the effect that the Act of Congress of June 25, 1910, 36 Stat. 855, granted to the Secretary of the Interior the exclusive jurisdiction to adjudge who were the legal heirs of a deceased intestate Indian allottee, and thereby deprived the courts from that time of the power to adjudge that question either in cases then pending or subsequently commenced. But the Act of June 14, 1918, radically differs from that of June 25, 1910, and at first blush does not seem to do more than to give to the probate courts therein mentioned jurisdiction concurrent with the federal and state district courts of the question who were the restricte 1 heirs of the respective deceased allottees described in the act.

[1] It is the established and familiar rule that where two actions between the same parties, involving the same cause of action, proceed at the same time in courts of concurrent jurisdiction, it is not the final judgment in the action first brought, but the first final judgment, although it may be in the action last brought, that renders the issues res adjudicata in both actions. Boatmen's Bank v, Fritzlen (8th C. C. A.) 135 Fed. 650, 657, 68 C. C. A. 288; Insurance Co. v. Harris, 97 U. S. 331, 336, 24 L. Ed. 959.

[2] Let us compare the acts of 1910 and 1918 with this rule of law in mind. The Act of June 25, 1910 (Comp. St. § 4226), reads that "the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent [the decedent described in the act), and his decision thereon shall be final and conclusive," and there it stops without making any exception, granting any right of appeal, or in any way limiting or modifying the exclusive and absolute power conferred and duty imposed on the Secretary to determine the question. Not so is the Act of June 14, 1918, or its grant. It declares that "a determination of the question of fact as to who are the heirs” of the decedent described therein "by the probate court of the state of Oklahoma having jurisdiction to settle the estate of said deceased, conducted in the manner provided by the laws of said state for the determination of heirship in closing up the estates of deceased persons, shall be conclusive of said question: Provided, that an appeal may be taken in the manner and to the court provided by law, in cases of appeal in probate matters generally." Comp. St. Ann. Supp. 1919, § 4234a. Note that if no appeal is taken the de

(273 F.) termination of the probate court of the question of heirship has the same effect, no greater, no less, than the determination of that question by a federal or state court had, if no appeal were taken, upon the parties to an action in that court. It is conclusive upon them in that court and elsewhere. In other words, Congress, by the Act of June 14, 1918, was sedulous to give by apt words the same effect to the determination by the proabte court of the question -of heirship treated by that act that the determination of that question by the federal and state district courts theretofore having jurisdiction thereof had under the general rule of law.

Again, the Act of June 25, 1910, not only conferred the power, but it imposed the duty, upon the Secretary to hear and decide who were the heirs of each decedent named therein, its command was the Secreta ry “shall ascertain the legal heirs of such decedent and his decision thereon shall be final and conclusive," and that command was an injunction against the subsequent effectual determination of such heirs by any other tribunal. On the other hand, the Act of June 14, 1918, contains no command to the probate courts to ascertain the restricted heirs of the decedents described in the act and no injunction against their ascertainment and determination by other tribunals which had jurisdiction of that issue. Moreover, the Act of June 25, 1910, declared the determination of the Secretary final and conclusive in each case. It made no exception and provided no method of review. But the Act of June 14, 1918, excepts from the jurisdiction of the probate court "an heirship already ascertained by competent legal authority under existing laws," declares that "the lands of full-blood members of any of the Five Civilized Tribes are hereby made subject to the laws of the state of Oklahoma, providing for the partition of real estate”laws which confer jurisdiction of such partition upon the district courts of that state—and declares that the determination of the probate court shall be conclusive, not final, and allows an appeal from every such determination to the proper district court of the state. When all the terms and provisions of the act are read together and given their proper effect, it is in legal effect a simple provision that, if the proper court having probate jurisdiction determines who the restricted heirs of one of the deceased allottees described in that act are, after the notices have been given and the proceedings have been taken as prescribed therein, and if that heirship had not been already determined by legal authority under existing laws, and if no appeal is taken from the probate court's determination, but not otherwise, it shall be conclusive.

And if a broader view be taken, if the situation of the restricted heirs at the time of the passage of the act and the practical operation thereof be considered, one cannot fail to see that the effect of it must be, and that the purpose of it doubtless was, to open another and a more facile, convenient, and comprehensive avenue of approach to a final and conclusive adjudication of the question it treats by the federal and state district courts by means of the probate proceedings authorized in the act against all the world and by the appeals from the decisions of the probate court to the federal and state district courts.

In State v. Huser, 76 Okl. 130, 184 Pac. 122, 124, Judge Rainey in

an exhaustive, instructive, and convincing opinion, has pointed out that when this Act of June 14, 1918, was passed, while the federal and state district courts had jurisdiction to adjudge who were the heirs of the decedents described in the act as between the parties to the suits in those courts, their judgments and decrees failed to estop claimants to heirship who were not parties to such suits, that in many cases there was no judicial method by which an adjudication of the question who were the restricted heirs of such a decedent as is described in the act could be had which would be conclusive against all the world, and that the purpose and effect of the act were, not to deprive the courts which prior thereto had jurisdiction to adjudge this question between the parties to the suits in those courts, but so to supplement their jurisdiction that decrees determining who were the only heirs of decedents described in the act might be obtained which would quiet titles under them and be conclusive against all the world. Reference is made to that opinion for a more extended statement and a more persuasive argument to this effect.

The radical difference between the objects and terms of the Act of June 25, 1910, upon which the decisions in Hallowell v. Commons, 239 U. S. 506, 507, 508, 36 Sup. Ct. 202, 60 L. Ed. 409, Pel-Ata-Yakot v. United States (D. C.) 188 Fed. 387, 389, and Parr v. Colfax, 197 Fed. 302, 304, 117 C. C. A. 48, are based, and the objects and terms of the Act of June 14, 1918, deprive the opinions in those cases of persuasive, much more of controlling, authority in the consideration of the proper construction and effect of the latter act.

There is no express repeal, nor is there any indication in the Act of June 14, 1918, that Congress intended thereby to repeal or to terminate the effect of the laws which gave jurisdiction to the federal and state district courts to ascertain who were the restricted heirs of the decedents described in that act, and such a repeal or termination thereby may not be presumed and ought not to be implied. A contruction of this act that by it Congress intended to vest and did vest only concurrent jurisdiction in the probate courts of Oklahoma with the jurisdiction already vested in the federal and state district courts is consonant with all the terms of the act with the demands of the time and the situation under which it was passed with reason and authority. And the result is that a deliberate consideration of the jurisdiction of the federal and state district courts to determine who were the restricted heirs of the decedents described in the Act of June 14, 1918, prior to the time of its passage, of the uncertain and doubtful condition of titles and rights of such heirs and of those claiming under them, of the evil at which it was aimed, of the purpose of its enactment, of the carefully guarded and limited terms of its grant of jurisdiction to the probate courts, of the exceptions from that grant, of the fact that all the decisions of those courts under it were made reviewable by the federal and state district courts, and of the general scope and tenor of this legislation, have left no doubt that it was not the intention of Congress by that act, nor was it the legal effect thereof, to deprive the federal or state courts of the jurisdiction vested in thein before its passage to adjudge who were the restricted heirs of the decedents de

(273 F.) scribed in that act, or to vest exclusive jurisdiction of that question in the probate courts therein mentioned, but that the intention of Congress was, and the effect of the act was and is, to grant to the probate courts concurrent jurisdiction with the federal and the state courts to ascertain and adjudge the question of which it treats.

Since no proceedings have ever been had in the probate court of the state of Oklahoma to ascertain, and no determination has ever been made by any such court, who were or are the restricted heirs of Barney Thlocco, and since that question has long since been adjudged by the final decrees of the court below, there is no logical or reasonable way of escape from the conclusion that that court had full jurisdiction to hear and adjudge that question of heirship, and that this court has had and still has jurisdiction to review that adjudication. The motions of Mr. Knight to dismiss these appeals and to remand the cause in which they were taken to the court below, with directions to vacate its findings and decrees therein, and to hold the funds in its control until the probate court of Okfuskee county, Okl., determines who the restricted heirs of Thlocco were, or to dismiss the cause outright, must therefore be and they are in all things denied, with costs against Mr. Knight.

FIRST NAT. BANK OF SILVERTON, COLO, V. MERCANTILE

NAT. BANK OF PUEBLO, COLO., et al.
(Circuit Court of Appeals, Eighth Circuit. May 4, 1921.)

No. 5609.

1. Banks and banking C262—National bank bound by acts of managing

cashier within scope of cashier's general authority.

Where the cashier of a national bank and two subordinate employés, who were subject to discharge by him, constituted the acting board of directors, the remaining directors being nonresidents, the cashier having in fact absolute control and management of its affairs, his acts and knowl. edge were the acts and knowledge of the bank in dealings with third parties, and it was bound by all his acts as cashier which were within the

general scope and power of a cashier. 2. Banks and banking (262—Liability of national bank for bonds deposited

held question for jury.

The cashier of defendant national bank, on behalf of himself and his father, the president, made an agreement for purchase of a controlling interest in plaintiff bank, which had a correspondent in the same city as defendant, with which it kept an account and also its certificates of deposit for $60,000. The correspondent also held a much larger amount in securities and bonds for plaintiff for safe-keeping and collection. The day following the stock purchase defendant's cashier, who for more than a year had been in full control of its business, over his signature as such cashier, wrote the cashier of plaintiff, requesting the transfer of plaintiff's account, time deposits, securities, and bonds from its then correspondent to defendant, and when the transfer was made he receipted for the same as cashier of defendant, but made no entry on its books of the bonds so transferred, amounting to $97,000, and later appropriated them and other funds to his own use and absconded. Held that proof of such facts was sufficient to require submission to the jury of the question of defendant's liability for the value of the bonds. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

3. Banks and banking Ow262—Want of knowledge of transaction by other

officers of national banks does not affect authority of cashier to bind bank.

The fact that other officers of a national bank had no knowledge of the receipt of bonds on its behalf by its cashier for safe-keeping and collection, or the fact that the bank received no benefit because of the unlawful conversion of the bonds by the cashier to his own use, did not affect his authority to receive them for it, nor relieve it from liability to account for them.

In Error to the District Court of the United States for the District of Colorado; John A. Riner, Judge.

Action at law by the First National Bank of Silverton, Colo., against the Mercantile National Bank of Pueblo, Colo., and others. Judgment for defendants, and plaintiff brings error. Reversed.

C. C. Dorsey, of Denver, Colo. (Gerald Hughes, of Denver, Colo., and M. G. Saunders, of Pueblo, Colo., on the brief), for plaintiff in error.

Henry McAllister, Jr., of Denver, Colo. (George E. Tralles, of Denver, Colo., on the brief), for defendants in error.

Before SANBORN, CARLAND, and STONE, Circuit Judges.

SANBORN, Circuit Judge. The First National Bank of Silverton, Colo., the plaintiff below, complains of many alleged errors in the trial of an action which it brought to recover of the Mercantile National Bank of Pueblo, the defendant below, the value of certain bonds and other securities of the par value of $97,000, which the plaintiff alleged it deposited with the defendant for safe-keeping and collection on February 13, 1915, and the defendant had refused to account for or return after due demand and had appropriated to its own use. The defendant answered in effect, so far as the trial here in question is concerned, that no such deposit was made with it, that C. C. Slaughter was at that time the vice president of the plaintiff, and as such he took and misappropriated the bonds and securities in question. The case was tried to a jury. At the close of the trial the court below granted a motion of the defendant to instruct the jury to return a verdict in its favor, and this ruling is the chief of the numerous alleged errors specified.

[1] The main question in the case therefore is: Was the evidence at the close of the trial so conclusively in favor of the defendant that, if it had been submitted to the jury under proper instructions and they had found a verdict for the plaintiff, it would have been the duty of the court below to set it aside because there would have been no substantial evidence to sustain it? In other words, was the evidence such that reasonable men in the exercise of an honest and impartial judgment could properly draw from it no other conclusion than that the defendant was not liable to the plaintiff on account of the securities and bonds, which for convenience will hereafter be termed the bonds. The evidence established these facts without substantial conflict: W. B. Slaughter and C. C. Slaughter, his son, from 1911 to April, 1915, owned a controlling part of the stock of the defendant, and were re

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Iudexes

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