STATE ex rel. STRONG v. SUPERIOR COURT OF POTTAWATOMIE COUNTY

STATE ex rel. STRONG v. SUPERIOR COURT OF POTTAWATOMIE COUNTY
1913 OK 394
132 P. 1077
38 Okla. 366
Case Number: 4980
Decided: 06/10/1913
Supreme Court of Oklahoma

STATE ex rel. STRONG et al.
v.
SUPERIOR COURT OF POTTAWATOMIE COUNTY et al.

Syllabus

¶0 COURTS--Superior Courts--Jurisdiction in Probate. By reason of sections 1966 and 1974, Comp. Laws 1909 (Rev. Laws 1910, secs. 1798 and 1806), the superior court has jurisdiction of matters of probate in a cause appealed from the county court to the district court and transferred upon motion of plaintiffs to the superior court.

H. H. Smith, Jno. T. Suggs, and C. W. Crim, for relator. F. H. Riley and W. S. Pendleton, for respondent.

HAYES, C. J.

¶1 This is an original action in this court, brought by relators to secure a writ of prohibition against the superior court of Pottawatomie county to restrain it from proceeding to hear and try a certain cause now pending in that court. The facts upon which the action has arisen are substantially as follows: On or about the 26th day of September, 1912, one Samuel Bailty died in Pottawatomie county, leaving an estate disposed of by him in a will. His will was filed with the county court, together with petition for probate of same. Relators appeared in that court and contested the probation of the will. From a judgment probating the will, they took an appeal to the district court. In that court, upon a motion which purports to have been made by counsel for relators, an order was made transferring the cause to the superior court. In the superior court relators appealed and filed a motion to retransfer the cause to the district court, upon the ground that the superior court was without jurisdiction to hear matters of probate transferred from the district court to it. This motion was overruled, and it is alleged that, unless restrained, the superior court will proceed to determine the cause. The demurrer to relator's petition presents for the consideration of this court the sole question whether causes appealed to a district court from a county court, involving its probate jurisdiction, may be transferred to the superior court for trial and determination. Section 1966, Comp. Laws 1909 (Rev. Laws 1910, sec. 1798), which constitutes part of the act creating superior courts, provides:

"Every such court shall have and exercise concurrent jurisdiction with the district court in all proceedings, causes or matters, and concurrent jurisdiction with the county court in all civil and criminal matters, except matters of probate."

¶2 But for the last clause of this section, to wit, "except matters of probate, " we think there could be no room whatever for controversy about the meaning of this section; for the language conferring jurisdiction upon the superior courts does not limit it to the exercise of "concurrent original jurisdiction," but provides that it shall have concurrent jurisdiction in all proceedings, causes, or matters. That it was not intended by this act to confine the concurrent jurisdiction conferred upon the superior courts to original jurisdiction and not include appellate jurisdiction was determined in Oklahoma Fire Ins. Co. v. Phillip,

"Applications for the writ of prohibition are premature until exception has been taken to the jurisdiction of the lower court and overruled, and will be refused if this has not been done, for it is invariably presumed that courts will give to parties the relief to which they show themselves entitled."

¶3 Upon the ground presented to the court below in the motion to retransfer the case to the district court, that court was correct in overruling the motion to transfer the cause back to the district court; and the second ground attempted to be presented by the affidavits filed here does not appear to have ever been presented to the trial court. For this reason, and for the reason that such ground is not set up in the petition of relators, it cannot be considered. If this issue had been properly presented, there would still remain the question whether relators would not have an adequate remedy by appeal, which is also unnecessary to be determined at this time. As a result of the views expressed herein, the writ must be denied.

¶4 All the Justices concur; except WILLIAMS, J., not participating.