Baker v. Newton

• Decision Date: 22 November 1910
• Docket Number: Case Number: 600
• Parties: BAKER v. NEWTON.
• Court: Oklahoma Supreme Court

1910 OK 373

112 P. 1034

27 Okla. 436

BAKER v. NEWTON.

Case Number: 600

Supreme Court of Oklahoma

Decided: November 22, 1910

Syllabus

¶0 1. COURTS--County Courts as Successors of Probate Courts--Procedure. The county court of the state, as to all causes jurisdiction of which is conferred upon it by the Constitution and which theretofore had been in the probate court of the territory, is a successor of said probate court; and the statutes prescribing the procedure in the trial and disposition of such causes in the probate court govern the trial and disposition of said causes in the county court, in so far as said statutes are not in conflict with the Constitution or inapplicable.

2. COURTS--County Courts--Clerks. By reason of section 18 of the Schedule to the Constitution, among the duties and powers devolving upon the judge of the county court, upon the admission of the state, was to act as clerk of his court.

3. SAME--Terms of Court--Adjournment. Adjournment of the regular term of a county court, without fixing in the order of adjournment any time at which the court shall reconvene, precludes the court from again convening until the time fixed by law for the next regular session of the court.

4. JURY--Trial by Jury--Constitutional Guaranty. The trial by jury secured to the people of the state by section 19, art. 2 of the Constitution, is a trial according to the course of the common law as it existed and the same in substance as that which was in use when the Constitution was adopted, except as specifically modified by the provisions of the Constitution.

5. SAME--Elements--Powers of Trial Judge. One of the elements of the trial by jury, as it existed in this jurisdiction before the admission of the state, was the power of the trial judge to instruct the jury upon the law.

6. COURTS--County Courts--Civil Procedure--Territorial Statutes--Effect of Statehood. Sections 1872, 1873 and 5028 of Wilson's Rev. & Ann. Statutes, providing that in all civil cases commenced in probate courts wherein the amount is within the jurisdiction of the justice of the peace courts the procedure shall be the same as in proceedings before the justice of the peace. and that the judge shall not have power to instruct the jury, is repugnant to section 19, art. 2 of the Constitution and was not extended in force in the state so as to be made applicable to the trial of causes in the county courts.

7. SAME. Section 1880 of Wilson's Rev. & Ann. Statutes, providing that probate courts shall be open at all times for the trial of cases under the justice procedure, is inapplicable to the trial of civil cases in the county courts of the state and to that extent was not extended in force in the state.

Error from Ottawa County Court; D. W. Talbot, Judge.

Action between K. R. Newton and Charles Baker. From the judgment the latter brings error. Reversed and remanded.

H. Kornegay, for plaintiff in error.

No copies of briefs reached the reporter.

HAYES, J.

¶1 This proceeding in error is brought to have reviewed a judgment of the county court of Ottawa county. The proceedings in that court were presented to this court upon the application of plaintiff in error for a writ of certiorari in Baker v. Newton et al., 22 Okla. 658, 98 P. 931. The proceedings of the trial court contain a great many irregularities, most of which are set out in the statement of facts in the foregoing case. The procedure attempted to be followed was that applicable to courts of justices of the peace. Plaintiff in error now contends, as he did in the former case, that no trial was ever had or judgment rendered in the county court, but that the cause was instituted, prosecuted and tried before the judge of the county court, sitting as a justice of the peace. The facts relative to this contention were stated by this court in Baker v. Newton et al., and we there stated our conclusion to be that the case was tried in the county court under the procedure controlling the courts of justices of the peace, and we are still of the same opinion. For a full statement of the facts relative to the proceedings in the trial court, reference is made to the opinion of the court in that case.

¶2 Plaintiff in error makes twenty-eight assignments of error for reversal of the cause, but no bill of exceptions was asked for by him or allowed by the trial court, and this proceeding is upon a petition in error and transcript of the record and not upon a case-made. Several of the assignments made present questions that could be reviewed only upon a bill of exceptions or a case-made. Those assignments will not be considered. Plaintiff in error contends that the judgment of the trial court is void upon the following grounds: First, that sections 11 and 12 of art. 7 of the Constitution, creating county courts and defining their jurisdiction, are not self-executing, and at the time of the trial in the court below no county court was or could be organized in the state. Second, that the judgment was rendered out of term time. Third, because the cause was tried under procedure applicable to the trial of causes in courts of justices of the peace, instead of under the procedure applicable to county courts. We shall consider these contentions in the order here named, except we shall consider the last two together.

¶3 1. This case was instituted in the lower court on the 14th day of March, 1908, and the trial had and judgment rendered on the 18th day of the same month. At that time no legislation had been enacted by the State Legislature relative to county courts, their jurisdiction or procedure therein. The law in force at that time pertaining to these questions consists of the provisions of the Constitution and of the statutory provisions extended in force in the state applicable thereto. Sections 11, 12, 13 and 14 of art. 7 of the Constitution (Snyder's Const., p. 219) establish a county court in each county of the state; declare that the same shall be a court of record; provide for the election of a county judge; prescribe his qualifications; fix his term of office; confer upon the county court, co-extensive with the county, original jurisdiction in probate matters and, until otherwise provided by law, concurrent jurisdiction in civil cases in the amount not exceeding $ 1,000, exclusive of interest. Prior to the admission of the state there existed in that portion of the state constituting the Indian Territory no court that corresponded to the county court, as it now exists in this state, or to the probate court, as it existed in the territory of Oklahoma before the admission of the state. There were no probate courts in the Indian Territory. The United States courts for the several districts of the Indian Territory possessed probate jurisdiction, but they were not probate courts. In Oklahoma Territory the judicial system consisted of the territorial district courts, probate courts and courts of justices of the peace. The statutes in force in that jurisdiction prescribed procedure applicable to the trial and disposition of civil cases in those respective classes of courts, and these statutes were, by the terms of the enabling act and the Schedule to the Constitution, put in force in the state in. so far as they are applicable and not inconsistent with the provisions of the Constitution. (Sec. 21, Act of Congress approved June 16, 1906; Snyder's Const. of Okla., p. 399; sec. 2 of the Schedule, Snyder's Const., p. 380).

¶4 In the judicial system established in the state by the Constitution, there is no court which is by name called a probate court, just as there was no court in the judicial system of the territory of Oklahoma that was by name called a county court; but the powers and jurisdiction of the probate courts of the territory and of the county courts of the state are, in many respects, the same. It is contended, however, that the county court is in no sense the successor of the probate court with respect to cases not pending at the time of the admission of the state, because it is not specifically so declared in the Constitution. If this contention is correct, there was no statute in force in the state upon its admission, or at the time of the trial in the court below, fixing the term of the county court or prescribing the procedure for the trial and the disposition of causes instituted in county courts after the admission of the state. The relation of a county court of the state to the probate court under the territorial system was considered by this court to some extent in Crump et al. v. Pitchford, 24 Okla. 808, 104 P. 911. In the first paragraph of the syllabus to that case it is said:

"The county court (section 12, art. 7, Const.) is the successor of the probate court as it existed under the territory of Oklahoma only as to matters or proceedings pending at the time of the admission of the state, and administrations and guardianships as provided in section 12, art. 7, of the Constitution."

¶5 Reading this syllabus alone, it would appear to have been held in that case that the county courts of the state are not the successors of the probate courts of the territory as to the jurisdiction conferred upon said courts by the Constitution in civil causes; and, since there is no statute or provision of the Constitution specifically declaring that the civil procedure applicable to probate courts shall apply to causes in the county courts, and, since they are in name different courts, if the latter be not in any respect the successor of the former, no procedure existed until same was prescribed by act of the Legislature. But the syllabus by the court must be read in connection with the opinion in order to determine the exact question decided in that case. In the opinion, which was delivered by Mr. Justice Williams, it is said:

"The county court, under the Constitution, has specifically defined powers and jurisdiction; and, had it been intended for it to have succeeded fully to the jurisdiction of the

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