SMITH v. SMITH

SMITH v. SMITH
1924 OK 224
223 P. 658
98 Okla. 1
Case Number: 12676
Decided: 02/19/1924
Supreme Court of Oklahoma

SMITH
v.
SMITH.

Syllabus

¶0 Justices of the Peace--Waiver of Jurisdiction by Trial on Merits on Appeal.
Defendant claimed that a justice of the peace had no jurisdiction to render a judgment against him because summons was not issued and served as provided by law. The record does not disclose whether he appealed solely on this question of law. On his appeal to the district court, without objection, he submitted to a trial on the merits. Held, that thereby defendant invoked the jurisdiction of the appellate court for all purposes, entered a general appearance, and waived objection to jurisdiction of his person.

Commissioners' Opinion, Division No. 2.

Error from District Court, Coal County; J. H. Linebaugh, Judge.

Bill Smith sued S. P. Smith. Judgment for plaintiff. Defendant appeals. Affirmed.

C. F. Green, for plaintiff in error.
Jas. R. Wood, for defendant in error.

ESTES, C.

¶1 Bill Smith, defendant in error, had judgment against S. P. Smith, plaintiff in error, in the justice of the peace court for $ 55 labor bill. The Smiths will be referred to as they appeared in the lower courts. Trial on appeal to the district court was upon the merits and judgment, on verdict of jury, was for plaintiff.

¶2 The only error argued by defendant in this appeal is that the justice of the peace forced him to trial on the same day on which summons was served upon him. Defendant entered special appearance in motion to quash summons in the justice of the peace court on this ground. In district court, same motion was overruled. The record does not show any summons issued or served on defendant in the justice court, any bill of exceptions, or bond on appeal to the district court. Thus the record does not disclose whether such appeal was on law or fact or both. However, since defendant, without objection, submitted to trial in the district court de novo on both law and fact, he thereby entered his general appearance, invoked the jurisdiction of the district court for all purposes, and waived objection as to jurisdiction of his person. Cohen v. Cochran Grocery Co., 70 Okla. 173 P. 642.

¶3 The judgment of the district court should be and is affirmed and motion for judgment against the sureties on the supersedeas bond herein is sustained.It is therefore ordered and adjudged by the court that the defendant in error, Bill Smith, do have and recover of and from R. J. Rains and J. H. Crim, sureties on the supersedeas bond herein, judgment for $ 55, with interest at six per cent. thereon from March 24, 1921, until paid, and all costs herein, for all of which let execution issue.