Jones v. Chicago Bldg. & Mfg. Co.

• Decision Date: 08 February 1901
• Citation: 64 P. 7,10 Okla. 628,1901 OK 16
• Parties: JONES v. CHICAGO BLDG. & MFG. CO.
• Court: Oklahoma Supreme Court

64 P. 7

10 Okla. 628, 1901 OK 16

JONES v. CHICAGO BLDG. & MFG. CO.

Supreme Court of Oklahoma

February 8, 1901

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 attention of the court to such irregularities, and the court thereupon overruled 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.

Error from district court, Payne county; before Chief Justice John H. Burford.

Action by the Chicago Building & Manufacturing Company against J. C Jones. Judgment for plaintiff. Defendant brings error. Reversed.

This was an action brought before a justice of the peace by the Chicago Building & Manufacturing Company to recover from Jones the amount of his subscription for the construction of a creamery. Jones applied for a change of venue. and thereupon the case was sent to the probate court by the justice of the peace. Jones made a special appearance in the probate court for the purpose of moving to dismiss the cause for the reason that there was no provision of law by which cases might be transferred from the justice court to the probate court. The motion was overruled, and exception reserved, and thereupon Jones answered in the case, which was tried upon a statement of facts, and judgment rendered for the plaintiff. Thereupon Jones appealed to the district court, and again submitted his motion to dismiss the cause for want of jurisdiction, which was again overruled.

Lowry & Workman, for plaintiff in error.

P. P Hillerman, for defendant in error.

McATEE J.

Section 4718 of the Code of Civil Procedure provides that upon the filing of the affidavit for a change of venue "such cause shall be transferred for trial before some other justice of the peace of the same township"; and it is here contended that, since the probate judge is not a justice of the peace, so neither is his court in any sense a justice's court. It is provided in section 1563 of the Statutes of 1893 that "in all cases commenced in said probate courts that are within the jurisdiction of...