Baker v. Newton
| Citation | 98 P. 931,22 Okla. 658,1908 OK 232 |
| Parties | BAKER v. NEWTON et al. |
| Decision Date | 23 November 1908 |
| Court | Supreme Court of Oklahoma |
Syllabus by the Court.
The Supreme Court, under section 2, art. 7, of the Constitution (Bunn's Ed.§ 170), has power to issue the common-law writ of certiorari.
[Ed Note.-For other cases, see Courts, Dec. Dig. § 207 [*]]
At common law, certiorari lies to inferior courts and tribunals to bring to a superior court the record for investigation as to jurisdictional errors only.
[Ed Note.-For other cases, see Certiorari, Cent. Dig. § 40; Dec Dig. § 27. [*] ]
Certiorari will not lie from the Supreme Court to the county court under section 2, art. 7, of the Constitution (Bunn's Ed. § 170), where there is an adequate remedy by appeal.
[Ed. Note.-For other cases, see Certiorari, Cent. Dig. § 5; Dec. Dig. § 5. [*] ]
Original petition for certiorari by Charles Baker against K. R. Newton and D. W. Talbot, County Judge. Writ dismissed.
This is an original action in this court. Plaintiff, in his petition, asks that a writ of certiorari issue to the defendant, Talbot, as county judge of Ottawa county, directing him to transmit to this court the entire record in a certain cause filed in the county court of Ottawa county by K. R. Newton, plaintiff, against Charles Baker, defendant, and that upon the coming in of said record the judgment in said cause rendered be quashed, and the defendants prohibited from enforcing the same. The writ of certiorari prayed for was issued by this court on the 16th day of May, 1908, and was directed to be served upon the defendants. The defendant, Talbot, on May 29, 1908, without further return, filed in this court, as directed by the writ, all the original papers and files in said cause and a certified copy of all the docket and record entries in the lower court. Plaintiff, in his petition, sets out copies of the pleadings, process, returns, subpoenas, motions, and orders of the court thereon, and a certified copy of the record in said cause, which appear to be substantially correct as evidenced by the original papers, and the certified copy of the record filed herein by defendant, D. W. Talbot, as county judge of Ottawa county.
Plaintiff alleges in his petition that the judgment which he seeks to have quashed was rendered by the defendant, Talbot, sitting as justice of the peace, and not as judge of the county court, and that the defendant, Talbot, issued an execution on said judgment, and that said defendant, Talbot, as county judge, is not vested with the powers of a justice of the peace in civil matters, and cannot proceed as such, and that all the proceedings in the trial of said cause were without the jurisdiction of the court trying the same, and void; and further alleges, in the alternative, that, if said cause was tried in the county court of Ottawa county, it was tried out of term time, and therefore void.
An examination of the copies of the pleadings, motions, subpoenas, and record of the lower court, either contained in plaintiff's petition, or filed as an exhibit thereto, disclose the following facts: That the action was begun in the court below by K. R. Newton's filing his petition, the caption of which is as follows: This pleading was indorsed as follows: "Bill of Particulars; Filed 3/14/08. D. W. Talbot, County Judge." Thereupon a summons was issued upon a blank form, which bears evidence as having been prepared to be used in a justice of the peace court. By the summons issued the defendant, Charles Baker, was commanded to appear before the county judge of said county at his office, on the 18th day of March, 1908, and the same was signed by D. W. Talbot, as county judge. In the various places in said summons, where the words "justice of the peace" appear to have been printed therein, same were struck out, and the words "county judge" inserted. On the return day of the summons, defendant filed with said county judge a motion to require plaintiff to make his bill of particulars more definite and certain and filed his answer. In these instances, as well as others, in which defendant filed any motion or pleading in the case, they were styled "Before D. W. Talbot, county judge of Ottawa county, state of Oklahoma." A jury panel was prepared by the county judge, and constable, as is evidenced by two separate pages of the panel, filed with the county judge; each page of the jury panel appears to have been made upon blanks prepared for a justice of the peace court, but are indorsed as follows: "In the County Court, K. R. Newton v. Charles Baker, filed 3/18/08. D. W. Talbot, County Judge." Several subpoenas were issued, all of which are issued in the case as pending in the county court. The summons for the jury appears also to have been issued upon a blank prepared for use in the justice of the peace court, but in each instance, where the words "justice of the peace" appear, the same were struck out, and "D. W. Talbot, County Judge," inserted, and the same is indorsed as being filed with the county judge. The verdict of the jury is indorsed as follows: But the caption to the verdict is: And a certified copy of the record shows the judgment to have been entered in a case styled, "In the County Court of Ottawa County, Oklahoma, K. R. Newton v. Charles Baker."
A careful examination of the copies of the various pleadings, motions, and returns contained in plaintiff's petition clearly shows that the case was tried in the county court, under the procedure controlling in courts of the justice of the peace, and that it was not tried before D. W. Talbot as a justice of the peace. Section 1872 of Wilson's Revised and Annotated Statutes of Oklahoma of 1903 provides that probate courts of the respective counties of the territory of Oklahoma shall have and exercise the ordinary powers of jurisdiction of justices of the peace, and should, in civil cases, have concurrent jurisdiction with the district courts in all civil cases, not exceeding $1,000, exclusive of cost, and in actions of replevin wherein the appraised value of the property does not exceed the sum of $1,000, and that the provisions of the chapter on civil procedure relative to justices of the peace and to practice and procedure in the district court shall apply to the procedure in all civil actions before said probate courts. It was repeatedly held by the Supreme Court of the territory of Oklahoma that in civil actions in the probate courts, where the amount involved was within the jurisdiction of courts of justices of the peace, the civil procedure relative to justices of the peace applied in the trial of such cases; but it was never held by that court that a probate judge, while trying such a case, sits or must sit as a justice of the peace; but, on the contrary, it was held, in Chicago Building & Manufacturing Co. v. Pewthers, 10 Okl. 724, 63 P. 964, that the probate judge, while trying such a case, did not act as an ex officio justice of the peace, but was at all times a probate judge, and that the probate court had the ordinary powers and jurisdiction of a justice of the peace. It appears from the proceedings had in the trial of the case that the court acted upon the assumption that the county court, under the Constitution, is the successor of the probate court of the territory of Oklahoma, and that the statutes governing the procedure in civil cases in the probate court were extended in force in the state upon its admission, and controlled and governed in civil cases in the county court, and that section 1872, supra, since the amount involved in the action was less than $100, and is within the jurisdiction of a justice of the peace, applied, and that the chapter on civil procedure relative to justices of the peace controlled in the trial and disposition of said case.
Plaintiff further alleges that the trial was not had and judgment rendered during any term of the county court of Ottawa county, and for this reason the judgment is void, and further contends that the civil procedure in courts of justices of the peace does not apply and govern any case in the county court. These contentions do not go to the jurisdiction of the county court of Ottawa county, either as to the person or the subject-matter of the action, but go to the regularity and legality of the procedure of the court in the trial of the case.
Smith & Cooler and W. H. Kornegay, for plaintiff.
In the consideration of this case, the first question that confronts us is: What is the office of the writ of certiorari as authorized to be issued by this court under section 2 of article 7 of the Constitution (Bunn's Ed. § 170)? Said section, in part, reads as follows: ***" By section 4756 of Wilson's Revised & Annotated Statutes of 1903, the writ of certiorari was abolished, and the same did not exist as part of the jurisprudence of the territory of Oklahoma. No other reference is made to the writ in the Constitution than in the section above quoted, except in section 10, art. 7 (Bunn's Ed. § 180), where the power is conferred upon the district...
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