These provisions of the statute were, on March 3, 1891, c. 543, § 17, 26 Stat. 989, ratified by Congress (Supp. Rev. St. vol. 1 [2d Ed.] p. 929). Wetz v. Elliott et al., 4 Okla. 618, 51 P. 657; Decker v. Cahill, 10 Okla. 251, 61 P. 1101. But, aside from any virtue or power these provisions may have received from the act of Congress approving them, they are valid enactments of the territorial Legislature. Congress, in establishing a government for the territory of Oklahoma, divided the government into three branches — executive, legislative and judicial.

Under the former decisions of this court, it is the settled law in this Territory "that when a judgment is rendered in the probate court in a civil cause, the defeated party may appeal direct to this court where questions of law only are to be reviewed." Decker v Cahill, 10 Okla. 251; Randolph v. Hudson, Id. 398. The motion to dismiss the appeal is overruled.

The case of Bell v. Territory, 8 Okla. 75, was a bastardy proceeding, and it was there incidentally held, but not expressly decided, that the provisions of the probate chapter on appeals are still in force. In Decker v. Cahill, 10 Okla. 251, the decision was expressly limited to appeals from the judgment of the probate court rendered while exercising the ordinary jurisdiction of the justice of the peace, or while exercising concurrent jurisdiction with the district court. The cases of Chandler v. Colcord, 1 Okla. 260; Brickner v. Sporleder, 3 Okla. 561; Nix v. Gilmer, 5 Okla. 740; Johnson et al. v. Hays, 6 Okla. 582; State Capital Printing Co. v. Board of Grant County, 8 Okla. 229; Wood v. Taylor et al., 8 Okla. 625; Petrie v. Coulter, 10 Okla. 257; McClung v. Penny, 11 Okla. 474; Stahl v. Wade, 11 Okla. 483, and Randolph v. Hudson, 61 P. 1103, all in some manner involve questions arising out of appeals from the probate courts, either direct to this court or by an intermediate appeal through the district court.

This question has been before this court in a number of cases, and we think has been finally determined adverse to the views contended for by the distinguished counsel for plaintiff in error. In Decker v. Cahill, 10 Okla. 251, this court specifically held that from all judgments of the probate court in civil cases, where the person appealing desires to have a trial de novo, the appeal must be taken to the district court, and if only questions of law are to be reviewed, then to the supreme court. And in Randolph v. Hudson, 10 Okla. 398, it was said: "The district court has jurisdiction of causes appealed from the probate court when questions of fact are to be retried, whether the case be one within the jurisdiction of a justice of the peace or of the district court.

A probate judge or probate court never acts as an ex-officio justice of the peace, but is, at all times a probate judge or a probate court; but, as a probate court, under our law, it has also the "ordinary powers and jurisdiction of justices of the peace." ( Decker v. Cahill, 61 P. 1101, this volume, page 251.) At common law, a change of venue would only lie to another court of equal jurisdiction, and not to one of a lower or higher jurisdiction, and this is still the rule except where the statute expressly provides differently.