Opinion
Filed September 5, 1907.
JUSTICES OF THE PEACE — Appeal — Taken to Probate Court, When. Under the provisions of section one of article nine of chapter twenty-eight of the Session Laws of Oklahoma of 1905, which provides that "in all cases not otherwise especially provided for by law, either party may appeal from the final judgment of the justice of the peace to the probate court of the county where the judgment was rendered," etc., an appeal may be taken from a judgment of a justice of the peace to the probate court only when the judgment is by confession or where there has been a jury trial and neither party claimed more than twenty dollars in his bill of particulars, as all other appeals were already provided for, in that the statutes in force at the time the section above quoted was enacted required that appeals, other than those named herein, be taken from the justice's court to the district court.
(Syllabus by the Court.)
Error from the Probate Court of Oklahoma County; before Wm. P. Harper, Probate Judge.
Reversed and remanded.
John H. Wright, for plaintiff in error.
Crockett Johnson, for defendant in error.
Opinion of the court by
This action was originally commenced in the justice's court by the appellant against the appellee on an open account, and judgment rendered in favor of the appellant, the Canadian Coal Company, from which judgment the appellee, G. C. Eldridge, appealed to the probate court. When the case reached the probate court, the appellant, the Canadian Coal Company, appeared specially and moved the court to dismiss the appeal for the reason that the probate court had no appellate jurisdiction in actions of that kind, but that such appeals, under the law, should be taken to the district court. This same objection was made when the case was called for trial. Both motions were denied by the probate court, and judgment rendered for the defendant below, G. C. Eldridge, and the Canadian Coal Company prosecutes its appeal to this court.
The appellee relies upon the provisions of section 1 of article 9 of chapter 28, p. 331, of the Session Laws of Oklahoma of 1905, which read as follows:
"In all cases not otherwise especially provided for by law, either party may appeal from the final judgment of the justice of the peace to the probate court of the county where the judgment was rendered."
It was said by this court in the case of Loewen v. Myers, 88 P. 1046 (not officially reported), that the only cases which, under the statute, could be appealed from a justice's court to a probate court are judgments by confession, and judgments in cases wherein neither party claims more than twenty dollars, and a jury trial has been had, as appeals in all other cases had been provided for, and that statute was only intended to provide for appeals not already provided for. The probate court had no jurisdiction of the case, as the appeal should have been taken to the district court, instead of to the probate court, and the appellant's motion to dismiss the appeal should have been sustained.
The judgment of the probate court is hereby reversed, and the case remanded to that court, with direction that it dismiss the appeal taken to it, and that the papers and cause be by it remanded to the justice's court, with direction to carry said original judgment into execution. All costs except those in the justice's court taxed to appellee.
Irwin, J., absent; all the other Justices concurring.