McJunkin v. Turner , 131 Okla. 37 ( 1928 )

In this action the plaintiffs, Mary McJunkin, nee Mary Hutton, and Word McJunkin, her husband, seek to recover the title and possession of a tract of land situated in Muskogee county from the defendant John E. Turner, who claims title to the land under a probate sale made in the county court of McIntosh county. Plaintiffs also join the Aetna Casualty Surety Company, a corporation, asking the court to remove as a cloud on their title, a mortgage held by the last-named defendant on the land.

The trial court sustained a motion for judgment on the pleadings made by the defendant Aetna Casualty Surety Company, a corporation, and entered judgment on its answer and cross-petition, from which order and judgment the plaintiffs have appealed to this court.

The case is similar to Mann v. Osborne, 128 Okla. 32, 261 P. 146, as the guardian's proceedings followed the same course as in that case; being transferred upon petition of the guardian by the district court of Okmulgee county to the county court of McIntosh county, where the guardian and minors then resided.

The only distinction between this case and the case of Mann v. Osborne, supra, necessary to be considered, is the fact that the order of transfer made by the district court of Okmulgee county was made on the 11th day of March, 1908. It will be seen that this transfer was made one day prior to the passage of the Act of March 12, 1908, chapter 16, art. 3, page 212, which this court held gave authority to the district court of Okmulgee county to make the transfer.

However, section 1 of the Act of March 12, 1908, amended section 1 of an Act of the Legislature passed December 21, 1907, chapter 16, art. 1, page 205, which is as follows:

"That all those civil cases transferred from the courts ofthe Territory of Oklahoma and the United States Courts in theIndian Territory to the courts of this state as transferred byActs of Congress, and accepted by the Constitution, which wouldhave been properly triable in any court or county or districtof this state, had such suit or proceeding been commenced afterthe admission of this state into the Union, including records formerly belonging to the United States Commissioners Courts, and all papers of mayors of cities and incorporated towns having and exercising ex-officio jurisdiction as United States Commissioners in that part of the state formerly known as the Indian Territory, that may be in the hands of the clerks of the various district courts of that portion of the state, may,including probate matters by any person having a substantialinterest therein on petition verified by the affidavit of theapplicant or his attorney of record, be transferred to theproper courts such county or district, and that all books, records, pending cases, papers, proceedings, liens, judgments and executions pending in a justice of the peace court of any county, are hereby transferred to some justice of the peace court of the county in which, if originally brought in said court, the defendant lives, or if the defendant be a nonresident, then the county where the plaintiff lives, or the defendant has property, and when such records are transferred as above provided for, said court shall have full and complete jurisdiction of all cases and proceedings so transferred." (Emphasis ours.)

It therefore appears that, at the time the transfer was made in this case, section 1 of the Act of December 21, 1907, was then in effect; and upon examination of these two acts, it is found that the Act of March 12, 1908, added nothing to the power already given the district court of Okmulgee county by the former act, and that every reason stated in the case of Mann v. Osborne, supra, for holding that transfer to be good is applicable to this case.

It appearing that plaintiff's right of recovery, as stated in her pleadings, rests alone upon the proposition that the transfer was void, and that therefore the subsequent proceedings and sale were void, and finding that said transfer was valid, we conclude that the district court of Muskogee county did not err in sustaining defendants' motion for judgment on the pleadings.

It is therefore ordered that the judgment of the trial court be affirmed.

BENNETT, JEFFREY, FOSTER, and LEACH, Commissioners, concur.

By the Court: It is so ordered.