MOULDIN v. RICE

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MOULDIN v. RICE
1907 OK 126
91 P. 1032
19 Okla. 589
Decided: 09/05/1907
Supreme Court of Oklahoma

GEORGE W. MOULDIN
v.
L. M. RICE, S. T. RICE, AND ESTELLA BRADFORD.

Syllabus

¶0 VENUE--Action to Recover Real Estate--County of Defendant's Residence. By virtue of section 10 of the organic act of this territory, an action to recover the possession of real estate must be instituted in the county where the defendants or either of them reside or may be found.

Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge.

Affirmed.

Devereux & Hildreth, for plaintiff in error.
Cotteral & Hornor, for defendants in error.

PER CURIAM:

¶1 This was no error in overruling the demurrer to the petition, since the court had jurisdiction of the subject-matter of the action, and the petition stated facts sufficient to constitute a cause of action for the recovery of real estate under our code. On the question of jurisdiction of the subject-matter of the action, the case of Burke v. Malaby, 14 Okla. 650, 78 P. 105, is decisive, in which case it was held that:

"An action affecting an interest in real estate in this territory, where the real estate is situated in one county and the defendant resides in a different county, must be instituted in the county where the defendant resides."

¶2 In this case the defendant resided in Logan county, and the right of the plaintiffs' action depended upon the interpretation of an ante-nuptial marriage contract.

¶3 We therefore hold that the court had jurisdiction of the subject-matter of the action, and that the petition stated facts sufficient to constitute a cause of action, and the defendant's demurrer was therefore properly overruled.

¶4 The judgment of the court below is affirmed.

¶5 Burford, C. J., who presided in the court below, not sitting; Irwin, J., absent; all the other Justices concurring.