Gilchrist v. Strong

264 P. 884 | Okla. | 1928

This action was originally filed by plaintiff, plaintiff in error here, against defendants, defendants in error here, in the district court of Custer county, Okla., on November 10, 1925, where it remained until April 15, 1926, when, upon motion filed by plaintiff, it was transferred to the superior court of Custer county, located at Clinton. It appears from the record that defendants filed in said superior court their written objections to the jurisdiction of said court, which said objections were overruled by one W. P. Keen, purporting to act as judge of said court on May 6, 1926. Thereafter, on the same day, to wit, May 6, 1926, said W. P. Keen considered and sustained a demurrer to plaintiff's petition, same having been filed by defendants on January 18, 1926, while the case was pending in the district court of Custer county. The plaintiff elected to stand on his petition and declined to plead further; whereupon said W. P. Keen rendered judgment dismissing plaintiff's cause of action, from which judgment this appeal is prosecuted.

A motion to dismiss this appeal having heretofore been denied by formal order without an opinion, this matter comes on for consideration on the record and briefs presented. Upon further consideration and in view of the holding of this court in Koch v. Keen, 124 Okla. 270, 255 P. 690, wherein it was held that said W. P. Keen was not a judge of said court, either de facto or de jure, and an absolute writ of prohibition was granted restraining and prohibiting said W. P. Keen from exercising jurisdiction as judge of the superior court of Custer county in an action there pending, we are of the opinion that the purported judgment sought to be appealed from herein is wholly void because rendered by a party not a judge, either de facto or de jure, and therefore acting without authority of law, and for these reasons the purported case-made filed herein is a nullity and presents nothing to this court for review. This court therefore acquired no jurisdiction of the matter save and except to dismiss the appeal.

It is therefore ordered that the appeal herein be and the same is hereby dismissed.

BRANSON, C. J., MASON, V. C. J., and LESTER, CLARK, and HEFNER, JJ., concur.

HARRISON, PHELPS, and RILEY, JJ., not participating.