Joseph McKenna

“ The burden of proof rested upon the plaintiff to prove, not only the Indian customs of the Creek Nation pertaining to marriage, but to establish her rights thereunder. There was more or less conflict in the testimony of plaintiff's witnesses, from which different conclusions might be drawn, and there being testimony reasonably tending to support the judgment of the court, the same will not be weighed by this court to ascertain whether the court's decision is against the preponderance of the testimony.' [39 Okla. 507, 135 Pac. 732.] ”

“ The court decided, as we have seen, that the trial court 'did not render its judgment alone upon the demurrer to the evidence, but, after a consideration of the proof submitted by plaintiff, made its findings of fact, thereby necessarily weighing the plaintiff's testimony for the purpose of determining the rights of the respective parties to a recovery.' And the court pointed out that 'even though it were conceded that technical error was committed, the substantial rights of the plaintiff were not affected, as she had introduced her evidence and rested her case. ”

“ It provides that 'the provisions of this article respecting trials by jury apply, so far as they are in their nature applicable, to trials by the court.' The argument is that under that section 'a citizen of the said state and of the United States is entitled to the same protection and enforcement of the law, on a demurrer to the evidence where their causes of action are tried by the court, as when tried to a jury.' And, it is further argued, if there be any evidence, 'conflicting evidence cannot be weighed or considered by the court,' and the demurrer should have been overruled. ”