Phebus v. Search

• Decision Date: 09 March 1920
• Docket Number: 5401.
• Citation: 264 F. 407
• Parties: PHEBUS et al. v. SEARCH et al.
• Court: U.S. Court of Appeals — Eighth Circuit

264 F. 407

PHEBUS et al. v. SEARCH et al.

No. 5401.

United States Court of Appeals, Eighth Circuit.

March 9, 1920

A. M Baldwin, of Shawnee, Okl., Rollo Six, of Barry, Ill., and A J. Carlton, of Shawnee, Okl., for appellants.

John Embry, of Oklahoma City, Okl. (T. G. Cutlip, of Tecumseh Okl., Mark Goode, of Shawnee, Okl., and Abernathy & Howell and Embry, Johnson & Kidd, all of Oklahoma City, Okl., on the brief), for appellees.

Before SANBORN, Circuit Judge, and LEWIS and MUNGER, District Judges.

SANBORN Circuit Judge.

On October 15, 1914, the county court of Pottawatomie county, Okl., duly adjudged an alleged lost will of Enos Nichols, a former resident of that county, who died at Shawnee, Okl., on December 21, 1911, to be his last will and testament, and to be proved after a full trial and hearing of the proponents, who are the appellants in this court and legatees under that will, and of the contestants under whom the appellees in this court, who will hereafter be styled the contestants, claim under the heir at law of Nichols on the ground that he died intestate. From this judgment of the county court the contestants appealed to the superior court of Pottawatomie county, a court of general and superior jurisdiction, which had jurisdiction of such appeals and to try de novo the issues adjudged by the county court. The district court of Pottawatomie county was also a court of general and superior jurisdiction, and it had like jurisdiction to try de novo such issues adjudged by the county court in cases properly presented to it for hearing and decision. These two courts had co-ordinate and concurrent jurisdiction, and neither had the power to review by appeal the judgments or orders of the other.

Section 10, art. 7, c. 14, of the Session Laws of Oklahoma of 1909, as amended by section 1 of the Act of March 22, 1911 (Session Laws of Oklahoma 1911, pp. 264, 265, c. 121), provided:

'That the judge of the superior court upon motion of the plaintiff in any cause now pending in said court or which may hereafter be filed in such court, shall transfer such cause or causes by order to the district court or county courts, respectively, having jurisdiction.'

And this provision was in force in January, 1915. In re Nichols' Will, Phebus v. Vinson (Okl.) 166 P. 1087, 1091. In the proceedings to contest the validity of a will in the state of Oklahoma the contestants are the plaintiffs and the proponents are the defendants. Revised Laws of Oklahoma 1910, Sec. 6210. After the contestants had appealed from the decree of probate of the will to the superior court and on January 2, 1915, after the proponents had moved that court to transfer the cause to the district court, they moved to withdraw that motion, and the contestants (the plaintiffs) moved to transfer the cause to the district court. On the same day the superior court denied the motion of the proponents to withdraw their motion to transfer, and granted the motions of both parties to transfer the cause to the district court. More than five months thereafter on May 25, 1915, on the motion of the proponents, the superior court made an order to the effect that its order of transfer be set aside and held for naught, and that the cause be set for hearing on the proponents' motion to dismiss the appeal on May 26, 1915, and on that day it ordered and adjudged that the appeal be dismissed.

The district court, conceiving that after the transfer of the cause to it on January 2, 1915, it had exclusive jurisdiction over it, and that the superior court was without jurisdiction thereafter to avoid the transfer, to withdraw the cause or to dismiss the appeal, tried the issues of the existence and validity of the alleged lost will on their merits, and on July 30, 1915, found and adjudged that the alleged will was not entitled to probate and that the probate thereof was denied.

In due time, before that trial proceeded, the contestants had appeared in that court specially for the purpose of challenging its jurisdiction, had pleaded and offered the orders of the superior court setting aside the order of transfer and dismissing the appeal, and had contended that the district court was without jurisdiction subsequent to those orders; but the latter court held that those orders were beyond the powers of the superior court and proceeded to judgment. From that judgment the proponents appealed to the Supreme Court of Oklahoma, and that court affirmed all the rulings and the decree of the district court. In re Nichols' Will, Phebus v. Vinson (Okl.) 166 P. 1087, 1092.

After the decree of the district court, and before its affirmance by the Supreme Court of Oklahoma, and on November 15, 1915, the proponents brought this suit in equity against the contestants for an accounting for and a recovery of the property of which Enos Nichols died seized, and insisted that the orders of the superior court of May 25 and 26, avoiding the transfer and dismissing the appeal left the decree of the county court establishing and probating the will final and conclusive, and left the district court without jurisdiction to render its decree denying the probate of the will. The contestants defended on the theory that those orders were beyond the powers of the superior court and void, and that the decree of the district court that the alleged will was not entitled to probate, was final and conclusive. All the orders and decrees which have been recited were pleaded and proved in the final hearing in the court below, and that court rendered a decree of dismissal of this suit which the proponents now challenge by this appeal.

While the court below rendered no opinion, there can be no doubt that its conclusion was that the superior court lost its jurisdiction of the cause appealed from the county court by its order of transfer of the cause to the district court on January 2, 1915, so that thereafter the jurisdiction of the district court was exclusive, and the orders of the superior court on May 25 and 26, setting aside the transfer and dismissing the appeal, were without force or effect.

The rules upon this subject which commend themselves to the reason and which are sustained by the weight of authority are (1) that where a cause of action is transferred by order of a court having jurisdiction thereof and of the parties thereto and lawful authority to make the transfer to another court, the former loses and the latter gains jurisdiction of the subject-matter,...