State Ex Rel. Caldwell v. Oldfield ( 1908 )

The only question necessary to pass on, in order to dispose of this case, is whether or not, in trials as to property rights under section 6, art. 3, of the Enforcing Act (Sess. Laws 1907-08, p. 605, c. 69), the procedure before magistrates or justices of the peace as provided in sections 4997-5001, incl., Wilson's Rev. Ann. St. 1903 (chapter 67, art. 7), applies. In the case of State ex rel. Caldwell, Relator, v.Hooker, County Judge, Respondent, ante, p. 712, 98 P. 964, this court, in construing said section of the Enforcing Act, said:

"The presumption is that the procedure before magistrates or justices of the peace, and county and district courts, was contemplated (sections 5015, 5017, 5113, 5151, Wilson's Rev. Ann. St. 1903); that, if any other than the usual procedure was intended, the Legislature would have so expressly declared, and it does not clearly appear that it was the intention of the Legislature that the regularly prescribed procedure of trial by jury before justices of the peace, and county and district courts, was to be denied to such claimants, or dispensed with in such cases. Huston v. Scott, 20 Okla. 142, 94 P. 512;Graham v. Van Wyck, 14 Barb. (N.Y.) 531; State v. Rotwitt,17 Mont. 41, 41 P. 1004; Sutherland Stat. Const. (2d Ed. Lewis) p. 931."

Following the rule announced in that case, the relator is not entitled to the relief prayed for.

Writ denied.

All the Justices concur.