Carter v. Gullett , 602 P.2d 640 ( 1979 )

DOOLIN, Justice:

This matter involves certain statutory requirements and interpretations of the small claim procedure act (the act) 12 O.S.1971 § 1751 et seq., particularly §§ 1758 & 1759.

Plaintiff’s suit, based on contract for labor and services performed, was filed in the small claims division of the Oklahoma District Court, seeking recovery of $370.00. After being once continued defendants appearance was set for 9:00 a. m., June 13, 1979. Defendant did not file a verified counterclaim or setoff 48 hours prior to the 9:00 a. m. hearing as required by 12 O.S. 1971 § 1758. There is evidence the defendant communicated his intent to file a counterclaim to the plaintiff in the 48 hour period set out in § 1758.

Sometime after 9:00 a. m. on June 13, the defendant filed his counterclaim praying judgment in an amount of $1,600.00. Meanwhile, discovering defendant’s counterclaim had not been timely filed and no agreement under § 1759 entered into between plaintiff and defendant, the plaintiff filed his motion to strike defendant’s claim.

The trial court overruled plaintiff’s motion and plaintiff petitions this court for extraordinary relief under Art. VII, § 4 of the Oklahoma Constitution to prohibit the transfer of the suit to district court.

We assume jurisdiction.

The respondent (defendant) argues a claim in excess of the $600.00 limitation of the act must be transferred to another division of the district court upon filing a verified counterclaim or setoff. He argues that the amount mandates a transfer. We do not agree.

Procedures under the small claims act are less formal, void of rigid restrictions and proceed with little regard to technicalities pertaining to the rules of evidence. They cloth the judge with the power to dispense speedy justice.¹ This right should not be taken from a small claim plaintiff arbitrarily' and capriciously. The act requires a strict compliance with the 48 hour provision of § 1758. The Legislature has mandated a counterclaim should not be allowed unless filed 48 hours before the date of hearing. If counterclaim is disallowed, there is no basis for a transfer. We construe §§ 1758 & 1759 together and in pari materia. The amendment of § 1759 in 1976 by the Legislature, 12 O.S.1978 Supp. § 1759 amended the statutory amount of the claim for $400.00 to $600.00. It did not alter the procedural aspects of the act.

The case of Hughes v. Dunsmoor, 594 P.2d 1231 (Okl.App.1979) decided by Division 2 of the Oklahoma Court of Appeals is squarely in point and dispositive; we would give it precedential effect and value.²

Let the writ issue.

LAVENDER, C. J., and WILLIAMS, HODGES, BARNES, SIMMS and HAR-GRAVE, JJ., concur. IRWIN, V. C. J., and OPALA, J., dissent.

1 . Black v. Littleton, 532 P.2d 486, 487 (Okl.App.1975).

2 . See Policy on Publication of Appellant Opinions, 12 O.S.1971 Ch. 15, App. 2 following rule 1.187 § 2.