(55 Okl. 518) LAUSTEN . LAUSTEN. (No. 7274.) (Supreme Court of Oklahoma. Jan. 18, 1916. Rehearing Denied Feb. 15, 1916.) (Syllabus by the Court.) 1. APPEAL AND ERROR 22 SPECIAL APPEARANCE ASSIGNMENT OF NONJURISDICTIONAL ERRORS. before the 18th day of January, 1915. This summons was served by delivering a copy to the defendant, in which copy the defendant was required to answer the petition on or before January 18, 1914. On December 21, 1914, after the issuing and service of the said summons, the defendant filed an amended petition in said action. On January 11, 1915, the Where a defendant files a special appear-defendant entered a special appearance in the ance objecting to the jurisdiction of the court over his person, in which special appearance only jurisdictional matters are set up, and, after such special appearance is overruled and exceptions saved, appeals to this court, the assigning in his petition in error, filed in this court, of nonjurisdictional errors of the trial court does not constitute a waiver of the want of jurisdiction in the trial court over his person. Rogers v. McCord-Collins Mercantile Co., 19 Okl. 115, 91 Pac. 864, not followed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 98; Dec. Dig. 22.] 2. PLEADING 238, 252 AMENDED PETI TION-NOTICE-NECESSITY. The filing by a plaintiff, after service or attempted service of summons and before answer, of an amended petition, which is complete in itself and does not refer to or adopt the original as a part of it, operates as an abandonment of the original petition; and, where such amended petition sets out a new cause of action and seeks for relief not prayed for in the original petition, notice of the filing thereof to the defendant or his attorney is essential to give the court jurisdiction to render judgment thereon, and a judgment rendered on such amended petition without such notice is void for want of jurisdiction of the person of the defendant. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 602, 620-625, 736-743; Dec. Dig. 238, 252.] (Additional Syllabus by Editorial Staff.) 3. COURTS 92-OPINIONS - "OBITER DICTUM." Where a judge who writes the opinion of the court expresses a view upon any point or principle which he is not required to decide, his opinion as to such point or principle is "obiter dictum"-citing Words and Phrases, Dictum. [Ed. Note. For other cases, see Courts, Cent. Dig. § 335; Dec. Dig. 92.] Commissioners' Opinion, Division No. 1. Error from District Court, Washington County; R. H. Hudson, Judge. Action by Mary K. Lausten against Mads C. Lausten. Judgment for plaintiff, and defendant brings error. Reversed, with direc tions. Norman Barker, of Bartlesville, and Hainer, Burns & Toney, of Oklahoma City, for plaintiff in error. Everest & Campbell, of Oklahoma City, for defendant in error. RUMMONS, C. On December 18, 1914, this action was commenced by the defendant in error, hereinafter called the plaintiff, in the district court of Washington county against the plaintiff in error, hereinafter called the defendant, for separate maintenance and alimony, and for the custody of the minor children of plaintiff and the defendant. On said day summons was issued in the said cause, returnable on December 28, 1914, requiring the defendant to answer the petition on or cause, objecting to the service of summons upon him, which, being overruled, he excepted, and made no further appearance. On January 28, 1915, judgment by default was rendered by the court in favor of the plaintiff against the defendant for the sum of $30,000 alimony, and restraining and enjoining defendant from transferring or disposing of any of his property, real or personal, until such time as such judgment was fully satisfied. On January 28, 1915, the defendant again appeared specially, questioning the jurisdiction of the court to render the judgment, and moved the court to vacate and hold for naught the said judgment for want of jurisdiction of the person of the defendant. This motion was by the court overruled, to which ruling the defendant excepted, and brings error to this court. The defendant assigns as error the overruling of his special appearance to quash the service of the summons, and the overruling of his motion to vacate and hold for naught the judgment for want of jurisdiction of the person of the defendant. He also assigns as error the permitting of the plaintiff to amend her petition, stating a new and enlarged cause of action against the defendant, withfendant, and making a new and enlarged deout any service of process or notice to the demand against the defendant, without notice or additional service of process on the defendant. the trial court erred in hearing any testimony He further assigns as error that under the pleadings in said cause. He further assigns error in rendering judgment on the pleadings and the testimony because the court was without jurisdiction over defendant, and had no jurisdiction to render said judgment, which was not supported by the evidence, and neither the original petition or amended petition of the plaintiff justified or supported the findings of the trial court in rendering such judgment. [1] It is contended by the plaintiff that the last three assignments of error, briefly set out above, constitute a general appearance by the defendant, and that he thereby waived the want of jurisdiction over his person in the trial court, and that this court is thereby precluded from inquiring into any want of jurisdiction of the trial court over the person of the defendant. This question meets us at the threshold in the determination of this case, and we must consider whether or not a party, appealing to this court from a judgment claimed to be void for want of jurisdiction in the trial court over his person, by filing a petition in error in which he assigns! [3] So it will be seen that the territorial errors committed by the trial court which are Supreme Court, before arriving at a considernot jurisdictional, enters a general appear-ation of the effect of the arguing of nonjurisance in the case and validates and makes dictional questions in the brief, had concludbinding and effective a judgment which was ed that the judgment of the trial court was up to that time void for want of jurisdiction. right upon the facts, and was correct for the Counsel for plaintiff rely upon the case of reason that the question determining it had Rogers v. McCord-Collins Mercantile Co., de- become res adjudicata. In the case of Huston cided by the territorial Supreme Court, and v. Scott, 20 Okl. 156, 94 Pac. 517, 35 L. R. A. reported in 19 Okl. 115, 91 Pac. 864. The (N. S.) 721, the court says: court there says: "The declaration of law made in the quotation was clearly obiter dictum: 'Where a judge who writes the opinion of the court expresses a view upon any point or principle which he is not required to decide, his opinion as to such point or principle is obiter dictum.' Hart v. Stribling, 25 Fla. 433, 435, 6 South. 455; L. Bucki & Son Lumber Co. v. Fidelity & Deposit Co., 109 Fed. 393, 400, 48 C. C. A. 436; 3 Words and Phrases, p. 2051. "In the brief of the plaintiff in error in this case, they argue two propositions, which can in no wise be taken advantage of by special appearance, and an appearance in any case which is designated as a special appearance, and in which special appearance propositions are contended for which cannot be taken advantage of by a special appearance, but can only be heard upon a general appearance, the parties will be taken and held to have made a general appearance. "So, when the learned jurist, Justice McAtee, Counsel argue, upon pages 10 and 11 of their speaking for the court, made the finding of fact brief, that the judgment was rendered without or that Martin had any knowledge of the pendtestimony; also that the petition was not sub-ency of any suit in any court touching the propscribed by the plaintiff in error, and for this erty, nor is there any proof in the case that the reason the court erred in rendering judgment; lands in question were the subject of any suit,' also the service was made on Thanksgiving Day. there was created a condition under which he The first two of these propositions are not mat- was not required to decide the legal question ters that can be considered under the head of involved, and the holding is obiter dictum, and a special appearance. They are matters that not binding on this court." do not pertain to the jurisdiction of the person, and the defendant, having presented these two matters to the court, will be deemed to have entered a general appearance in the action, and, having entered a general appearance, all matters affecting the service are waived, and the court will be held to have jurisdiction of the person of the defendant." We therefore conclude that the holding which we have quoted in the case of Rogers v. McCord-Collins Mercantile Co., supra, is obiter dictum and not authoritative. It seems clear that the assignments of error, "that the trial court erred in hearing any This case is the only Oklahoma case we testimony under the pleadings in said cause have been able to find touching upon the ques- on the 28th day of January, 1915," and "that tion of general appearance in the Supreme the trial court erred in rendering judgment Court as a waiver of jurisdiction. While for the defendant in error against plaintiff in it has been cited repeatedly by this court on error on the pleadings and the testimony, the proposition that a motion designated as which was not supported by the evidence, a special appearance in which nonjurisdic- and that neither the original petition or tional questions are raised is in fact a gener- amended petition of the plaintiff below, this al appearance, we are convinced the language defendant in error, justified or supported we have quoted above is a dictum not neces- the findings of the trial court," challenge this sary for the decision of the case in which court to the review of the judgment of the the opinion was rendered. The question of trial court upon grounds that are nonjurisjurisdiction in that case was a question of dictional; but does the fact that the defendfact; the sheriff's return showing service ant complains of errors which are not jurisupon the defendant at his usual place of dictional waive the jurisdictional errors of residence, and the defendant contending that which he also complains? It is not contendat the time of the service he was a non-ed that the special appearance to quash the resident of the county and territory. The summons or the motion to vacate the judgcourt, in determining the case before considering the question of the matters argued in the briefs, says: ment are based upon any nonjurisdictional grounds. So the repeated holdings of this court, that a motion to vacate a judgment for "It is insisted by the plaintiff in error that want of jurisdiction of the person of the both of these motions ought to have been sus- movant and also for nonjurisdictional grounds tained. There was, however, evidence offered constitute a waiver of the want of jurisdicand considered, and we think that the return of the sheriff was sufficient as against the evi- tion, and submits the person of the movant to dence offered by the defendant. The affidavits the jurisdiction of the court, and that thereoffered by the defendant are very unsatisfactory. by a judgment void for want of jurisdiction The affidavit of the wife of the defendant was incompetent and could not have been considered by the court. The other affidavits contain conclusion and evidently appeared to the court as evasive and unsatisfactory." It of the person is validated, do not directly aid us in the determination of this question. seems to us that this court has gone as far in the matter of waiver of jurisdiction after judgment as the law requires. The authori"This same question, having been presented to ties upon the question of waiver of jurisdicthe court upon the motion to quash service, be-tion of the person upon appeal to the Supreme came res adjudicata, and the court would have been justified in overruling the motion upon that ground, if none other." The court further says: Court are not in harmony. They seem to be divided into three groups: The first holding that an appeal to the Supreme Court from a no reason for any such distinction, and we judgment rendered without jurisdiction of feel convinced there is none. In fact it seems the person waives the want of jurisdiction to us that the defendant who stands alone and submits the person of the appellant to upon the question of jurisdiction is entitled the jurisdiction of the court, and binds him to the more favorable consideration. This by the judgment already entered, and the ap-court, in the case of Griffin v. Jones, 147 pellate court is precluded from considering Pac. 1024 (not yet officially reported), says: the want of jurisdiction. The next group holds that while an appeal from a judgment void for want of jurisdiction of the person submits the appellant to the jurisdiction of the court, yet the appellate court will consider the question of jurisdiction; and if it finds want of jurisdiction, will reverse and remand the cause with leave for the appellant to plead therein. The third group holds that a general appeal from a judgment void for want of jurisdiction of the person of the appellant is not a waiver of the question of jurisdiction, and does not validate the judgment if it be void. An almost unbroken line of decisions by this court holds that a defendant making a special appearance, objecting to the jurisdiction of the court over his person, may, when such special appearance is overruled, save his exception and thereafter demur and answer, and proceed to the trial of the cause upon its merits without waiving his special appearance; and that he may appeal to this court from an adverse judgment, and bring to the attention of this court not only the error of the trial court in overruling his special appearance, but all other errors committed by the trial court in the proceedings below, after such special appearance has been overruled, without being held to have waived his special appearence. This court will upon such an appeal consider the question of the jurisdiction of the person of the defendant, and, if it finds that the court below was without jurisdiction, will reverse and dismiss the case. Chicago Building & Manufacturing Co. v. Pewthers, 10 Okl. 724, 63 Pac. 964; Chicago Building & Manufacturing Co. v. Kirby, 10 Okl. 730, 63 Pac. 966; Austin Manufacturing Co. v. Hunter, 16 Okl. 86, 86 Pac. 293; St. L. & S. F. Ry. Co. v. Clark, 17 Okl. 562, 87 Pac. 430; Oklahoma Fire Insurance Co. v. Barber Asphalt Paving Co., 34 Okl. 149, 125 Pac. 734; Spaulding v. Polley, 28 Okl. 764, 115 Pac. 864; Wm. Cameron & Co. v. Consolidated School District No. 1, 44 Okl. 67, 143 Pac. 182; Commonwealth Cotton Oil Co. v. Hudson (No. 5483) 155 Pac. 577, not yet officially reported. This being the state of the law upon the consideration of the question of the jurisdiction of the person upon appeal in cases where the defendants have proceeded to try the cases upon their merits and have speculated upon the chances of obtaining favorable verdicts or judgments in the trial court, can it be said that a stricter and harsher rule will be applied to him who rests his case in the court below upon the question of jurisdiction and takes no chances of obtaining a favorable "The rule established by this court, following the decisions of the Supreme Court of Kansas dition of judgment, has the effect to validate a in holding that a general appearance, after renvoid judgment, often results in hardships, and, in effect, a denial of justice, and should not be extended beyond the reason of such rule. It for want of service is no judgment at all; and has been said that a judgment which is void to hold that after a judgment in form only has been entered against a party, which in fact and effort to relieve himself from such judgment in law is no judgment, by his appearance in an which is apparently valid, but which in fact is void, is carrying the rule of estoppel and waiver to the extreme.' As we have said above, we think this court has gone to the extreme limit in validating judgments void for want of jurisdiction of the person, by holding that a general appearance after judgment in the court rendering judgment makes such judgment valid and waives the question of jurisdiction. We do not think that either reason or authority requires an extension of that rule to a proceeding in error in this court to reverse the judgment of the trial court for errors in ruling upon purely jurisdictional questions. We therefore conclude that the defendant did not, by assigning nonjurisdictional errors in his petition in error, waive the questions of Jurisdiction which he had properly preserved below. Bastian v. Adams, 5 Neb. (Unof.) 32, 97 N. W. 231; Zimmerman v. Gerdes, 106 Wis. 608, 82 N. W. 532; Electric Appliance Co. v. Warren, 115 Wis. 477, 91 N. W. 970. . [2] It remains to be considered whether or not the court below had jurisdiction of the person of the defendant, so that it could enter a valid judgment against him. Upon this question we need only consider whether or not the trial court had jurisdiction to enter judgment against the defendant upon the amended petition. The plaintiff by filing her amended petition, in which no reference whatever is made to her original petition, upon which she had caused, or attempted to cause, a summons to be served upon the defendant, abandoned her original petition, and the same ceased to be a part of the record of the case; and her case against the defendant rested solely upon the amended petition. It is contended by counsel for plaintiff that because no notice was given defendant of the amended petition it became a nullity, and that the case was tried and judgment rendered upon the original petition. We think the converse of this is true; and that when the plaintiff filed an amended petition before answer she elected to abandon her original petition, and the same became, and was, a nullity. Berry v. Berry, 12 Okl. 221, 226, 71 Pac. 1074, 66 L. R. 324, 91 Pac. 883; Territory v. Woolsey, 35 Okl. 545, 553, 554, 130 Pac. 934; Gaar-Scott & Co. v. Rogers (not yet officially reported), 148 Pac. 161, at page 164. It is apparent from an examination of both the original and amended petitions that the plaintiff sets up a new cause of action in the amended petition. That is, in the amended petition she sets up facts stating a cause of action against the defendant for an injunction restraining him from disposing of his property, pending the determination of the suit. She also seeks, in the amended petition, for the sum of $250 attorneys' fees; while in the original petition no attorneys' fees are prayed for specifically. It is apparent, from a perusal of the judgment of the court below, that in rendering judgment against the defendant it was based upon the amended petition, for the court grants the injunction prayed for and allows the attorneys' fees in the sum prayed for. Section 4787, Revised Laws 1910, provides: "The plaintiff may amend his petition without leave, at any time before the answer is filed, without prejudice to the proceedings; but no tice of such amendment shall be served upon the defendant or his attorney, and the defendant shall have the same time to answer or demur thereto as to the original petition." It is not contended that any notice whatever of this amended petition was given either to the defendant or his attorneys, so that the defendant at the time judgment was entered was not in default, nor was he in court an examination of the record discloses that the [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. 773.] Commissioners' Opinion, Division No. 4. Error from District Court, Tulsa County; L. M. Poe, Judge. Action by Vera Porter against P. E. Coyne and R. K. Shipman. Judgment for plaintiff, and defendant Shipman brings error. Affirmed. Biddison & Campbell, of Tulsa, for plaintiff in error. Geo. T. Brown, of Tulsa, for defendant in error. MATHEWS, C. No brief having been filed herein by the plaintiff in error, and the defendant in error having filed a motion to dis miss for that reason on November 15, 1915, and having since filed an additional motion to affirm for failure to file brief, and neither of these motions having received any response from the plaintiff in error, the court is of the opinion that the appeal was for delay only, and, under rule No. 7 of this court (137 Pac. ix), we recommend that the judgment be affirmed. urer. (No. 4827.) (Syllabus by the Court.) PROPERTY. (55 Okl. 1) upon the amended petition. The giving of ROGERS et al. v. HERNDON, County Treas notice of the filing of an amended petition before answer is jurisdictional; and any judg-(Supreme Court of Oklahoma. Jan. 24, 1916.) ment rendered, without such notice having been given, is without jurisdiction and of no 1. TAXATION 210 EXEMPTION USE OF effect. Haight v. Schuck, 6 Kan. 192; R. R. Co. v. Van Riper, 19 Kan. 317; Beecher v. Ireland, 46 Kan. 97, 99, 26 Pac. 448; PerryRice Grocery Co. v. Craddock Grocery Co., 34 Tex. Civ. App. 442, 78 S. W. 906; Three Forks City Co. v. Commonwealth, 20 Ky. Law Rep. 149, 45 S. W. 353; Sanford v. Edwards, 19 Mont. 56, 47 Pac. 212, 61 Am. St. Rep. 482, note page 493. This being true, the trial court was without jurisdiction to render the judgment complained of; and, taking this view of the case, we do not deem it necessary to consider the other errors assigned. The judgment should be reversed and remanded with directions to the trial court to vacate such judgment. PER CURIAM. Adopted in whole. (55 Okl. 120) SHIPMAN v. PORTER. (No. 6649.) Where exemption from taxation is based upon the use to which the lands are put, when the use ceases the exemption also ceases. [Ed. Note. For other cases, see Taxation, Cent. Dig. 88 334-337; Dec. Dig. 210.] 2. TAXATION 181-PROPERTY SUBJECT-INDIAN ALLOTMENT-TRANSFER TO THIRD PERSONS. After land which has been allotted to a freedman citizen of the Seminole Tribe of Indians and designated as a homestead under the Seminole Agreement bearing date of December 16, 1897 (Act July 1, 1898, c. 542, 30 Stat. L 567), has been conveyed by the allottee to third parties, it becomes subject to taxation. [Ed. Note.-For other cases, see Taxation, Cent. Dig. 45; Dec. Dig. 181; Indians, Cent. Dig. § 54.] Commissioners' Opinion, Division No. 6. Error from District Court, Seminole County; Tom D. McKeown, Judge. Action by H. H. Rogers and V. V. Harris against Mace Herndon, Treasurer of Seminole County, to enjoin collection of taxes. (Supreme Court of Oklahoma. Jan. 25, 1916.) Judgment for defendant, and plaintiffs bring (Syllabus by the Court.) APPEAL AND ERROR BRIEF-AFFIRMANCE. 773-FAILURE TO FILE Where plaintiff in error fails to file brief under rule 7 (137 Pac. ix) of this court, and error. Affirmed. Mann, Rogers & Harris, of Holdenville, for plaintiffs in error. C. L. Hill, Co. Atty., of Wewoka, for defendant in error. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.-75 terms of the deed, be made inalienable and nontaxable as a homestead in perpetuity," is the specific provision of the treaty relied upon by the plaintiffs. BROWN, C. This action was originally | The provision, "Each allottee shall designate commenced in the district court of Seminole one tract of 40 acres, which shall, by the county by H. H. Rogers and V. V. Harris, the plaintiffs in error, who will be hereinafter designated plaintiffs, against Mace Herndon, treasurer of Seminole county, defendant in error, who will be hereinafter designated defendant, to restrain the collection of taxes levied against the northwest quarter of the southeast quarter of section 16, township 9 north, range 7 east, in Seminole county, for the years 1909, 1910, 1911, and 1912. The trial court sustained a demurrer to plaintiffs' petition, and the plaintiffs elected to stand upon the same. The court rendered judgment against the plaintiffs, and they bring error to this court. The land upon which the tax is sought to be collected was allotted to one Ned Island, a freedman citizen of the Seminole Tribe of Indians, as a part of his portion of the lands of said tribe of Indians, under the laws of Congress and the Seminole Agreement dated December 16, 1897 (30 Stat. L. 567, c. 542), and the said tract of land was designated as a homestead, as provided in said treaty. [1, 2] On July 30, 1908, the said Ned Island conveyed the land above described to the plaintiffs, and they are now, and have been ever since, the owners of the same in fee. The sole question for determination in this case is whether or not the Seminole freedman homestead is subject to taxation after the same has been conveyed by the allottee, and the answer to this question depends upon the construction to be placed upon that part of said agreement which applies to the question of taxation; said section being as follows: "When the tribal government shall cease to exist, the principal chief last elected by said tribe shall execute, under his hand and the seal of the nation, and deliver to each allottee a deed conveying to him all the right, title, and interest of the said nation and the members thereof in and to the lands so allotted to him, and the Secretary of the Interior shall approve such deed, and the same shall thereupon operate as a relinquishment of the right, title, and interest of the United States in and to the lands embraced in said conveyance, and as a guarantee by the United States of the title of said lands to the allottee; and the acceptance of such deed by the allottee shall be a relinquishment of his title and interest in all other lands belonging to the tribe, except such as may have been excepted from allotment and held in common for other purposes. Each allottee shall designate one tract of 40 acres, which shall by the terms of the deed be made inalienable and nontaxable as a homestead in perpetuity." It is conceded that the tax exemption provided for in the treaty is a property right that cannot be abrogated by either Congress or the state of Oklahoma. New Jersey v. Wilson, 7 Cranch, 164, 3 L. Ed. 303; Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L. Ed. 941: English v. Richardson, 224 U. S. 680, 32 Sup. Ct. 571, 56 L. Ed. 949; Lieber v. Rogers, Co. Treas., 37 Okl. 614, 133 Pac. 30; Whitmire v. Trapp, 33 Okl. 429, 126 Pac. 578. But the controversy arises as to the period of In arriving at the meaning of this provision of the treaty we should take into consideration the whole treaty, and its object and purposes (United States v. Boisdoré, 8 How. 122, 12 L. Ed. 1009; Kansas City Bridge Co. v. Lindsay Bridge Co., 32 Okl. 31, 121 Pac. 639; Jack Rider et al. v. Lee Helms et al. [Okl.] 150 Pac. 154, recently decided, but not yet officially reported), and should bear în mind that a treaty with the Indians must be construed not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians (Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49). The legal title to the land in the Seminole Nation was in the tribe, for the common use of its members, and the principal object of the treaty was to extinguish the title of the tribe and to divide the land in severalty among its members, thereby creating a system of private property and laying a foundation for the creation of a state which Congress desired to organize for the government and development of the Indian Territory. It was also the object and purpose of the parties to the treaty to place certain safeguards and restrictions around the individual members of the tribe to protect them in the use and enjoyment of the said property that was to be allotted to them as their share of the tribal property, and one of the things specially provided for was that each member should have a home consisting of a tract of 40 acres, and, in order to hedge the same around with safeguards and restrictions so as to preserve it to the allottee, it was provided in that part of the treaty under consideration that it should be "inalienable and nontaxable as a homestead in perpetuity." It was doubtless not the purpose of the parties to the agreement to enhance the market value of the said 40-acre tract, for the same provision that made it nontaxable also made it inalienable for the same period of time, thus clearly disclosing that it was the sole purpose in making the land nontaxable to preserve it to the allottee as a home, and to protect him in the use and occupancy thereof. And this is further evidenced by the fact that the said treaty makes no special provision for the exemption of the other lands of the allottees from taxation. There is nothing in this provision of the agreement or in any act of Congress applicable to the Seminole Tribe of Indians that evidences a purpose or intention to exempt the property from taxation in the hands of third persons after they have purchased it from the allottee. On the contrary, the act of Congress of April 26, 1906 (34 Stat. L. 137. c. |