208 U.S.

Opinion of the Court.

deed and that said debt is a legal and subsisting debt as against the defendants, and is a legal charge upon the property involved in this action." Concerning the attachment proceedings and the sale made thereunder it was expressly found from the evidence that the defendants and cross-complainants, the Grigsbys, had no knowledge of the pendency of the action in time to appear and make defense thereto, that the affidavits for publication and for attachment were wholly insufficient and did not state facts adequate to confer jurisdiction upon the court, that the petition also failed to state facts sufficient to confer jurisdiction, and that all the steps taken in the attachment suit, including the sale, were wholly void and of no effect. Concerning the averments of fraud in the bringing of the attachment suit in the name of the American Exchange Bank the court found as follows:

"The American Exchange Bank of St. Louis, Mo., the plaintiff in said action, never at any time brought said suit, or authorized any one to bring said action in its name, and had no knowledge of the pendency of said action until a long time after the rendition of the judgment therein and the property had been sold thereunder. The court further finds it a fact that the defendants in said action did not owe the plaintiff, the American Exchange Bank, any sum or sums of money; the court further finds as a fact that said action was prosecuted by one of the defendants as against himself and other defendants in the name of the American Exchange Bank, without its knowledge or consent, and for the purpose of defrauding these defendants and cross-petitioners out of their property rights involved in this action, and the court further finds that said action 'was a fraud and an imposition upon the court as well as on the defendants and cross-petitioners; the court further finds that the Southern Pine Lumber Co., a corporation, and T. L. L. Temple and all other persons purchasing at the sheriff's sale under the judgment in said cause number 1524 above referred to and their grantees, took nothing by their pur

chase, by reason of said judgment and proceedings had thereunder, being without jurisdiction in the court and absolutely void."

A judgment was entered avoiding the sale made under the attachment proceedings and awarding the Grigsbys the property, subject to the enforcement of the rights of Ward under the deed of trust. After an unsuccessful attempt to obtain a new trial, error was prosecuted to the Supreme Court of the Territory. That court, after elaborately disposing of motions to dismiss, affirmed the judgment. The court held that it was unnecessary to consider the sufficiency of the affidavits for publication and attachment in the attachment suit, as the findings below concerning the fraud in bringing that suit and the absence of a party plaintiff therein sustained the action of the trial court.

"The Southern Pine Lumber Company, a corporation," T. L. L. Temple and G. W. R. Chinn and his wife, appealed and moreover prosecuted a writ of error. Our jurisdiction to review is by appeal (Natl. Live Stock Bank v. First Natl. Bank, 203 U. S. 296, 305, and cases cited), and therefore we dismiss the writ of error from consideration.

On September 15, 1907, a motion to dismiss was postponed to the merits. The grounds are that the cause was not docketed within the time required by rule of this court, because proper parties were not made in the court below, and because the court below erred in not sustaining a motion to dismiss, and moreover because the assignments of error here relied on are insufficient.

The judgment was rendered on September 7, 1905. On June 12, 1906, the appeal was allowed. While the record was deposited with the clerk of this court within thirty days, it was not docketed until after thirty days, because the counsel who originally forwarded the record were not attorneys of this court, and hence not qualified to enter their appearance. As the docketing was accomplished soon afterwards (August 10, 1906),.and no motion to docket and dismiss under Rule 9 was

made, the contention is without merit. Green v. Elbert, 137, U. S. 615; Richardson v. Green, 130 U. S. 104.

Service of citation was accepted by all the appellees. The acceptance on behalf of G. M. D. Grigsby and D. J. Grigsby, late partners as Grigsby. Brothers and individually, was made on June 15, 1906, by their attorney of record. On June 30, 1906, G. M. D. Grigsby died. In this court the death of G. M. D. Grigsby was suggested and the proper order for publication was made and the return thereof filed. The contention is that the proceedings to make the representatives of G. M. D. Grigsby parties should have been taken in the court below and that hence the notice of publication for that purpose had in this court was ineffective. The answer to the proposition is, that the jurisdiction of this court attached upon the allowance of the appeal. Evans v. State Bank, 134 U. S. 330, 331, and cases cited. And, although, by a subsequent failure to duly prosecute, the benefits of the appeal might have been lost (Grigsby v. Purcell, 99 . S. 505, 508), yet, clearly, as not only had the appeal been allowed, but citation had been issued and acceptance of service thereof been made by the attorney of record of the Grigsbys during the lifetime of both, the appeal was pending in this court at the time of the death of G. M. D. Grigsby, and as the case had been docketed proceedings were rightfully taken here to make his representative a party.

The remaining grounds, viz., the failure of the court below to dismiss and the inadequacy of the assignments of error, involve no question concerning our jurisdiction. In order, however, to at once dispose of the first contention we observe that the appellees cannot be heard to assail the judgment below, since they did not appeal. Field v. Barber Asphalt Paving Co., 194 U. S. 618, 621, and cases cited.

We come to the merits. Before doing so it is necessary to fix accurately the scope of our inquiry. The case was submitted to the trial court by stipulation without a jury. That court by virtue of the Code of Civil Procedure of Oklahoma was empowered to make findings of fact as the basis of its

conclusions of law. Rev. Stat. of 1903 (4477), § 279. On the writ of error which was prosecuted to the Supreme Court of the Territory that court was confined to determining whether the findings of the court below sustained the judgment if there was evidence supporting the findings and was not at liberty to consider the mere weight of the evidence upon which the findings were made by the trial court. Under these circumstances, notwithstanding the ruling in Natl. Live Stock Bank v. First Natl. Bank, supra, pointing out the difference between the method of reviewing a case coming from the Territory of Oklahoma and cases coming from the Territories generally, our review in the case before us is confined to determining whether the court below erred; that is, whether that court was mistaken in holding that there was evidence tending to support the findings and that such findings sustained the judgment. Halsell v. Renfrow, 202 U. S. 287.

1st. It is contended that the court below erred because it did not find, as a matter of fact, that the debt was due Ward, but contented itself, as did the trial court, with assuming the debt to be due, merely as a result of a collusive admission made by the Grigsbys to that effect in their answer, thus depriving the defendants of the property acquired by them in the attachment proceedings because of the weakness of their title, and not on account of the establishment of an adverse right in Ward. It being, moreover, insisted that as the failure to find affirmatively in favor of Ward's debt, irrespective of the admission made by the Grigsbys, required the rejection of Ward's demand, a like result was necessary as to the cross-petition of the Grigsbys, since that petition was purely ancillary to the original demand of Ward for relief, and therefore should have shared a like fate.

It is apparent that these contentions rest upon the proposition that no finding was made by the court below concerning the existence of the debt of Ward. The proposition is thus stated in the brief of counsel:

"In the judgment of the District Court the only finding as

to Ward's debt is that 'from the evidence and the pleadings it is admitted by the defendants G. M. D. Grigsby and D. J. Grigsby, the cross-petitioners in this action, that they are indebted to the plaintiff,'" etc.

The words thus quoted are taken from the findings and judgment of the trial court, disposing of the cross-petition of the Grigsbys, but these words immediately follow the passage relied on:

"By reason of the note and trust deed sued on by the plaintiff in this action in the sum of five thousand seven hundred and ninety-seven dollars ($5,797.00) and that said debt is a legal and subsisting debt as against the defendants and is a legal charge upon the property involved in this action."

But putting this out of view, the inaccuracy of the statement that the passage referred to is "the only finding as to Ward's debt," is patent on the face of the record. We say this because the statement overlooks the explicit findings which the trial court made, as to the proof of Ward's debt, in the judgment which was entered concerning that debt which we have previously quoted. In so far as the proposition assails the sufficiency of the evidence to sustain the express findings concerning the debt of Ward, it suffices to say that we think it is beyond question that there was testimony tending to show that the note and trust deed originally held by the National Bank of Jefferson had been acquired by Ward for a valuable consideration. Indeed, that the proposition now relied upon is a mere afterthought is demonstrated by the application for a new trial made in the trial court, since such application, among others, was expressly based upon the ground that the court had erred in finding that Ward's debt had been established. And the same is substantially true of the assignments of error made for the purposes of the writ of error to the Supreme Court of the Territory. In other words, having asserted below that error was committed because the trial court had found that Ward's debt was established by the proof, it is now insisted that the court erred because no such finding was made.