Burrus v. Funk

• Decision Date: 14 November 1911
• Citation: 119 P. 976,29 Okla. 677,1911 OK 363
• Parties: BURRUS v. FUNK.
• Court: Oklahoma Supreme Court

119 P. 976

29 Okla. 677, 1911 OK 363

BURRUS v. FUNK.

Supreme Court of Oklahoma

November 14, 1911

Syllabus by the Court.

In forcible detainer before a justice of the peace, the introduction by defendant of evidence, in effect, that plaintiff's grantor, at the time of the execution of the deed under which plaintiff claims possession, was a minor where the evidence relative thereto is conflicting, is not sufficient to oust the court of jurisdiction to try the right of possession.

Where the appellant fails to assign as error the overruling of a motion for a new trial in the petition in error, no question is properly presented in this court to review errors alleged to have occurred during the progress of the trial in the court below.

Error from Wagoner County Court; W. T. Drake, Judge.

Action by W. A. Funk against J. D. Burrus. Judgment for plaintiff and defendant brings error. Affirmed.

Robert F. Blair, for plaintiff in error.

Chas G. Watts, for defendant in error.

TURNER C.J.

This is an action for unlawful detainer originally commenced by defendant in error as plaintiff before a justice of the peace in and for Wagoner township and county to recover of plaintiff in error, as defendant, possession of certain real estate. For answer defendant denied plaintiff to be the owner of the land, that he was entitled to possession, and the jurisdiction of the justice to try the cause. There was judgment for plaintiff, and again on trial anew in the county court to which the case was appealed. Defendant brings the case here.

The evidence discloses that defendant was in possession under a lease from the former owner which had expired, and was seeking to retain possession by holding over under an alleged new lease which he set up. Assailing plaintiff's title which was a deed from his landlord, and introduced for the purpose of proving plaintiff's right of possession defendant sought to show that the same was void because of the alleged minority, when made, of plaintiff's grantor and the issue of fact being determined against him, now claims that the title to the land being thus involved the justice, and, on appeal, the county court, was ousted of jurisdiction to try the cause. Such not being a proper subject of trial, the jurisdiction of neither court was affected thereby. In Vansellous v. Huene, 26 Okl. 243, 108 P. 1102, the situation was strikingly similar. There, as here, defendant was in possession under a lease, and after the expiration of his term refused to deliver possession to the purchaser. The court said: "The next objection raises the question of the sufficiency of the deed to the plaintiff, and puts in...