Perkins v. Cooper

• Decision Date: 30 June 1931
• Docket Number: Case Number: 22386
• Citation: 155 Okla. 73,4 P.2d 64,1931 OK 392
• Parties: PERKINS et al. v. COOPER, Judge.
• Court: Oklahoma Supreme Court

1931 OK 392

4 P.2d 64

155 Okla. 73

PERKINS et al. v. COOPER, Judge.

Case Number: 22386

Supreme Court of Oklahoma

Decided: June 30, 1931

Syllabus

¶0 Mandamus--Writ Commanding Transfer of Cause From Superior Court to District Court Denied.

Application for peremptory mandamus denied.

Original action by Homer E. Perkins and another to secure a writ of mandamus against LeRoy Cooper. Judge of Superior Court of Pottawatomie County. Writ denied.

Armstrong & Murphy, for petitioners.

Park Wyatt, for respondent.

KORNEGAY, J.

¶1 This is an original action brought in this court for a writ of mandamus directed to the respondent, LeRoy Cooper, judge of the superior court of Pottawatomie county, Okla., commanding him to make an order transferring a civil case that was filed in the superior court of Pottawatomie county, on the 12th of March, 1931. The petitioners were the defendants in that action, and a money judgment was sought for damages. On the 1st of May, 1931, they filed an application requesting the judge of the superior court to transfer the case to the district court. The superior judge refused to do so, and an alternative writ was issued by this court, and a response has been made thereto by the judge of the superior court. In that response the request is made that the writ be denied on the ground of an adequate remedy by appeal. Under our supervisory power over the courts that appeals come from to this court, in cases where appeal would not give a speedy and adequate remedy, the point involved can as well be decided now as later, and under the circumstances better. We, therefore, hold that the application is proper. As to whether or not the applicants are entitled to relief is another question. That depends on the Constitution of this state and the legislative enactments concerning it, and the construction of their provisions.

¶2 Section 6 of article 2 is the foundation for the legislative enactments in a large measure. Section 6 of article 2 of the Constitution provides as follows:

"Sec. 6. Courts of Justice Open--Speedy Remedy. The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."

¶3 It will be observed that the command of the Constitution is that justice shall be administered without denial and without delay and without prejudice. Ordinarily, in applications for changes of forum, there is set forth something showing that the party applying would be prejudiced by reason of allowing the administration to continue upon the line it was running on at the time of the application. We have in our system the application for a change of venue and for the change of judge on account of prejudice.

¶4 As applied to the present case, the personnel of the jury that would be gotten in the superior court would be different from what would be gotten in the district court, but the localities from which chosen are the same. There is no showing here that the judge or the jury that would try the case in either event would be partial.

¶5 The provision of the Constitution referred to is self-executing. The evident purpose of all of the superior court acts was to carry out this provision of the Constitution, to the end that justice should be administered without delay, rather than on account of prejudice in some other court. With that in view, the Legislature early established a superior court in Pottawatomie county, but it was not located at the county seat by legislative enactment. In dealing with it, the Legislature dealt with it as being a court located elsewhere than at the county seat.

¶6 After the legislative enactment, the people voted for a transfer of the county seat from Tecumseh to Shawnee, and it is now claimed by the applicants for the writ that the act of 1921, coupled with the election of 1930, rendered it mandatory upon the superior court judge of Pottawatomie county to make the transfer without any reason therefor, merely upon the application of one of the parties. If this were permitted, the very purpose of the act to expedite the administration of justice could thereby be well avoided, provided that one-half of the lawyers engaged in the practice of law in Pottawatomie county were so minded. In other words, it would depend entirely upon the wish of the lawyers, rather than the discretion of those put in authority to pass upon it. Such a result should be avoided if possible. Most clearly the act of 1921 did not apply to the superior court of Pottawatomie county at the time it was passed. Without anything foreseen by the Legislature as actually going to happen, but a mere possibility arising out of the election for county seat, it is clear that to apply the provisions to the present situation would in all probability result in a condition unthought of by the Legislature.

¶7 Two views of the matter are before us: One is that the Legislature intended to take from the presiding judge any discretion in the matter by the act of 1921. That result should be avoided. Necessarily, by all rules of construction, we must so hold. By so holding, the clear purpose of the Legislature running through the creation of the superior courts, to relieve congested litigation and expedite litigation, could be easily thwarted. The act governing is the act of 1921, and is as follows:

"Section 3116. Transfer of Cases--District Court and Superior Court. The district court, or judge thereof, in any county wherein a superior court exists, may, in his discretion, at any time, transfer any cause pending and undetermined therein to the superior court of said county. The superior court or judge thereof may, at any time, in his discretion, transfer to the district court of said county any cause pending and undetermined therein which may be within the jurisdiction of the district court, and at any time in his discretion may transfer to the county court any cause pending therein except probate matters, of which the county court might have had original jurisdiction.

"The county court or judge thereof, may, at any time, in his discretion, transfer any cause pending therein, except probate matters to the superior court. In all counties in which a superior court is held at the county seat, and at no other place, the judges of the said superior courts and the judges of the district courts shall, upon motion of either party to the action, transfer such cause or causes by order to the district court or superior court, as the case may be, except where such cause is regularly set down for trial. Upon such transfer being made, such cause shall stand for trial in the court to which it has been so transferred as if it had been originally filed therein, and in such cases the court clerk shall transfer the original files to the court to which said cause has been so transferred."

¶8 When one looks at the history of these acts with reference to the superior court, he will find that they are practically local matters, and that the acts are based upon the relieving of a situation that is temporary and a result of local conditions. In the early acts on the subject, no procedure was prescribed for making the change. By House Bill No. 92, the Legislature evidently recognized that fact, and undertook to prescribe the procedure, which was on motion of either of the parties. However, the act did not undertake in express terms to take away...