Wetz v. Elliott

• Decision Date: 03 September 1896
• Citation: 4 Okla. 618,51 P. 657,1896 OK 43
• Parties: JOHN WETZ v. JOSEPH W. ELLIOTT, W. H. ELLIOTT AND PETER RUSE
• Court: Oklahoma Supreme Court

1896 OK 43

51 P. 657

4 Okla. 618

JOHN WETZ v. JOSEPH W. ELLIOTT, W. H. ELLIOTT AND PETER RUSE

Supreme Court of Oklahoma

Decided: September 3, 1896

Error from the Probate Court of Woods County.

This was an action of injunction brought by plaintiff in error here, plaintiff below, in the probate court of Woods county against Joseph W. Elliott, justice of the peace, W. H. Elliott, special constable, and Peter Ruse, to enjoin execution upon, and collection of, a judgment in favor of Ruse, and against Wetz, for the return of certain personal property of the value of about twenty-five dollars, and costs of about ten dollars. A temporary order of injunction was duly issued, which, upon motion of defendants, was dissolved. From this action the appeal is taken. Affirmed.

Syllabus

¶0 PROBATE COURT--Jurisdiction. Probate courts have no jurisdiction to entertain actions of injunction. The grant of power under § 6, art. 15, ch. 18, of the Statute of 1893 was to grant injunctions in proceedings pending or to be brought in the probate courts and this only authorized probate courts or judges to grant injunctions where such orders were necessary to protect the jurisdiction of the probate courts, and for the proper conduct of causes of which the probate courts were given jurisdiction by § 1 of the same act, and that jurisdiction was of causes for the recovery of money or personal property, where the amount or value thereof did not exceed one thousand dollars.

W. W. S. Snoddy & Son, for plaintiff in error.

L. W. DeGeer, for defendants in error.

BIERER, J.:

¶1 The only question presented by plaintiff in error in this case is as to the jurisdiction of the probate court to award an injunction in this character of a case.

¶2 He contends that the temporary order was dissolved by the probate court because the probate court had no jurisdiction of the cause, and that was the only question presented. The motion upon which this injunction was dissolved presented this question, and in any event it is the only one necessary for our consideration.

¶3 The plaintiff in error contends that the probate court had jurisdiction of the cause, and that this jurisdiction was granted the probate court under § 6, art. 15, ch. 18 of the Statutes of 1893. This article is a part of the laws passed by the first session of the legislature of this Territory, and which took effect December 25, 1890; and if the jurisdiction is granted the probate court to issue an injunction in a purely injunctional proceeding, this conclusion must be reached from the legislation of this Territory of 1890, and the approval of the same by subsequent act of congress.

¶4 To start with, it may be taken as conceded that the granting of an injunction is an exercise of equity jurisdiction. Under the Organic Act of the Territory the probate courts were not vested with equity jurisdiction, excepting perhaps to such an extent as would embrace cognizance of money demands of a limited amount, where the same might arise from equitable liabilities, and this could not be conferred on them by an act of legislature without congressional approval. (Ferris v. Higley, 20 Wall. 375, 22 L. Ed. 383.)

¶5 The acts of the legislature of the Territory of Oklahoma of 1890, granting extended jurisdiction to probate courts, were, however, on March 3, 1891, approved by act of congress in this language:

"That in addition to the jurisdiction granted to the probate courts and the judges thereof in Oklahoma Territory by legislative enactments which enactments are hereby ratified." * * * (Supplement to the Revised Statutes, Vol. 1, Second Edition, 929.)

¶6 And therefore these acts of the territorial legislature must be given the same force and effect as if they were themselves congressional enactments, and no one will dispute that congress had the power to bestow upon the probate courts of the Territory the entire and complete chancery jurisdiction.

¶7 The question therefore resolves itself, not into one whether the legislature of this Territory had the power to grant jurisdiction to probate courts to issue injunctions, but whether they have granted it, and if so, to what extent; and this must be determined by a review of all of the Territorial enactment on the question. (Allison v. Berger, 1 Okla. 1, 25 P. 511; Territory of Oklahoma, ex rel. Sampson v. Clark, 2 Okla. 82, 35 P. 882: Lee v. Roberts, 3 Okla. 106, 41 P. 595)

¶8 The first section of art. 16, ch. 19, of the Laws of 1890, which is the article extending the jurisdiction of the probate courts, and is art. 15, ch. 18 of the Laws of 1893, as thus published, provides:

"1. Probate courts in their respective counties shall in addition to the powers conferred upon them by the probate chapter of the Territory, have and exercise the ordinary powers and jurisdiction of justices of the peace and shall in civil cases have concurrent jurisdiction with the district court in all civil cases in any sum not exceeding one thousand dollars exclusive of costs and in action (meaning actions) of replevin where the appraised value of the property does not exceeds (meaning exceed) that sum and the provisions of the chapter on civil procedure relative to justices of the peace and to practice and proceedings in the district court shall apply to the proceedings in all civil actions, prosecuted before said probate courts: Provided, That probate courts shall not have jurisdiction:

"First. In any action for malicious prosecution.

"Second. In any action against officers for misconduct in office except where like proceedings can be had before justices of the peace.

"Third. In actions for slander and libel.

"Fourth. In actions upon contracts for sale of real estate.

"Fifth. In any manner wherein the title or boundaries of land may be in dispute nor to order or decree the sale or partition of real estate."

¶9 Section 6 of the same article provides:

"In all cases pending or to be brought in the probate court the probate judge shall have power and jurisdiction to allow injunctions, mandates, writs of prohibition and to make all other and further orders as may be necessary in cases pending in said court and to hear and determine motions made to vacate or modify the same, and generally to do as to actions pending in said courts any and all acts which the judges of the district courts are by law authorized to do. He may also in case of the absence of the district judge from his county allow injunctions in matters about to brought or pending in the district court, but he shall not have power to vacate or modify the same. He shall have power to allow writs of habeas corpus in all cases provided by law, and to hear and determine the same."

¶10 And it is under § 6 of this article that it is claimed the power of the probate court to grant an injunction in this case is vested. That section standing by itself, however, cannot give the answer to the question, for it is not a broad and comprehensive section, and does not provide that in all cases the probate judge may grant injunctions, nor does it upon its face vest a general jurisdiction in probate judges to grant injunctions, but it is a grant of jurisdiction to grant such injunctions, as well as mandates, writs of prohibition, and other necessary orders, in actions pending or about to be brought in the probate court as may be necessary in causes pending in the court; that is, it may be necessary to carry out...