Chicago Bldg. & Mfg. Co. v. Kirby
| Decision Date | 08 February 1901 |
| Parties | CHICAGO BLDG. & MFG. CO. v. KIRBY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A change of venue will not lie from a justice of the peace to a probate court, or from a probate court to a justice of the peace, in a civil action, even though the amount involved is within the jurisdiction of a justice of the peace.
2. Where a court has no jurisdiction over the particular cause or of the person of the defendant, and the defendant appears specially for the purpose of calling the attention of the court to such irregularities, and the court thereupon overrules his motion to such jurisdiction, he may save his exception, file his answer, and proceed to trial without waiving such error; and he may take advantage of such error on appeal to a higher court.
Appeal from district court, Payne county; before Chief Justice John H. Burford.
Action by the Chicago Building & Manufacturing Company against F. P. Kirby. A judgment for plaintiff was reversed in the district court, and plaintiff appeals. Affirmed.
Uhl & Miller, for appellant.
Robert A. Lowry, for appellee.
The facts in this case are identical with those in the case of Manufacturing Co. v. Pewthers, 63 P. 964. That case was commenced before the same justice, and change of venue taken to the same probate court. The judgments in the probate and district courts are the same in both cases, and the appeal taken in the same manner. And for the reasons stated in that case the judgment of the district court of Payne county in this case is hereby affirmed at the costs of the appellant. It is so ordered, and the district court of Payne county is hereby directed to return all of the papers certified to that court by the probate court of said county, with directions to that court to return the original papers from the justice's court to said justice.
All of the justices concurring, except BURFORD, C.J., who tried the cause below, not sitting.
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