Appellants have filed two assignments of error, as follows: “(1) In overruling the fourth ground of demurrer to the plaintiffs' complaint for two reasons, viz.: (a) There is a misjoinder of parties plaintiff; (b) the complaint does not state facts sufficient to constitute a cause of action. (2) In sustaining the demurrer to the answer of Charlie and Mollie Miller.” The appellee has failed to file a brief in this action and present any authority for the institution of this suit in the manner the same has been instituted. If there is any other statute than the act of June 28, 1898, known as the “Curtis Act,” that was in force at the institution of this suit, that authorized any Indian tribe to institute a suit to recover the possession of the land, our attention has not been called to the same. If said suit was instituted under the provisions of the said act of June 28, 1898 (Ind. Ter. St. 1899, §§ 57q-57z20), then it must have i complied with the requirements of the following sections of said act:

“ (3) That said courts are hereby given jurisdiction in their respective districts to try cases against those who may claim to hold as members of a tribe and whose membership is denied by the tribe, but who continue to hold said lands and tenements notwithstanding the objection of the tribe; and if it be found upon trial that the same are held unlawfully against the tribe by those claiming to be members hereof, and the membership and right are disallowed by the commission to the Five Tribes or the United States Court, and the judgment has become final, *431then said court shall cause the parties charged with unlawfully holding said possessions to be removed from the same and cause the lands and tenements to be restored to the person or persons or nation or tribe of Indians entitled to the possession of the same.”

“ (5) That before any action by any tribe or person shall be commenced under section three of this act it shall be the duty of the party bringing the same to notify the adverse party to leave the premises for the possession of which the .action is about to be brought, which notice shall be served at least thirty days before commencing the action by leaving a written copy with the defendant, or, if he cannot be found, by leaving the same at his last known place of residence or business with any person occupying the premises over the age of twelve years, or, if his residence or business address cannot be ascertained, by leaving the same with any 'person over the age of twelve years upon the premises sought to be recovered and described in said notice; and if there be no person with whom said notice can be left, then by posting same on the premises;

“ (6) That the summons shall not issue .in such action until the chief or governor of the tribe, or person or persons bringing suit in his own behalf, shall have filed a sworn complaint, on behalf of the tribe or himself, with the court, which shall, as near as practicable, describe the premises so detained, and shall set forth, a detention without the consent of the person bringing said suit or the tribe, by one whose membership is denied by it.; provided, that if the chief or governor refuse or fail to bring suit in behalf of the tribe then any member of the tribe may make complaint and bring said suit.”

Misjoinder of parties plaintiff can be taken advantage of by demurrer. Gassett vs Kent, 19 Ark. 602; Christian vs Crocker, 25 Ark. 327, 99 Am. Dec. 223; Pom. Code Rem. §§ 213-215. No allegations appear in the complaint, as required by section *4323 of said act, and the complaint fails to comply with the requirements of section 6 of said act. In Hargrove vs Cherokee Nation, 3 Ind. Ter. Rep. 478, (58 S. W. 669), Judge Clayton, in passing upon the action of the court below in overruling a demurrer interposed by the defendants in that case, which raised the identical question raised by the demurrer in'this case, under section 6 of said act, says: “'Sec. 6. That the summons shall not issue in such action until the chief or governor of the tribe, or person or persons bringing suit in his own behalf, shall hatfe filed a sworn complaint on behalf of the tribe or himself, with the court, which shall, as near as practicable, describe the premises so detained and shall set forth a detention without the consent of the person bringing said suit, or the 'tribe, or by one whose membership is denied by it; provided, that if the chief or governor refuse or fail to bring suit in behalf of the tribe, then any member of the tribe may make complaint and bring suit.' 30 Stat. 495 (Ind. Ter. St. 1899, §§ 57q-57z20). From a reading of the statute above set out, it is clear that the Cherokee Nation may have brought the suit without joining the prospective allottee, and, in case of its failure to bring the suit at all, its coplaintiff could have done so without joining the Cherokee Nation. But the statute provides, as to this class of cases, ‘that if the chief or governor refuse to fail or bring suit in behalf of the tribe, then any member of the tribe may make complaint and bring said suit/ It seems clear from this statute that the chief or governor is to take the initative, and bring the suit, and only in case of his failure or refusal to do so would another member or the tribe be authorized to bring the suit; and, to justify it by a member of the tribe, it must appear from the complaint that the chief or governor had refused or failed. The complaint makes no such averments, and in fáctcould not have done so, because the nation is made a party to the suit by it. The demurrer, therefore, should have been sustained, and the cause dismissed as to Claude Shelton.”

*433There being no allegation in the complaint as required by section 6, we are of the opinion that the demurrer of the appellant, should have been sustained, and the case dismissed as to either the Cherokee Nation or all the plaintiffs except the Cherokee Nation. The case is therefore reversed and remanded.