Webb v. Cannon

HEFNER, J. This is an action originally brought in the justice court of the city of Tulsa before Floyd V. Freeman, justice of the peace, by Mrs. J. H. Gannon, against *146 R. L. Webb to recover tbe sum of $43.80 upon open account. Tbe summons was issued by tbe justice of tbe peace, and by bim served upon defendant. Defendant entered bis special appearance in tbe justice court and moved to quasb tbe summons and service thereof because of tbe irregularity of tbe service. The motion was denied. Defendant then filed bis petition and affidavit for a change of venue. Tbe change was granted, and tbe cause transferred to J. A. Campbell, justice of tbe peace, where Hie defendant likewise entered a special appearance and moved to quasb tbe summons. Tbe motion was overruled and upon trial judgment was rendered in favor of plaintiff. Defendant appealed to tbe court of common pleas of Tulsa county on both questions of law and fact and executed a general appeal bond as provided by section 3010, C. O. S. 1921. Upon tbe lodging of tbe transcript in that court, defendant again entered a special appearance and filed bis motion to quasb tbe summons because of irregular service. Tbe cause went to trial on its merits without a formal order having been made disposing of this motion, and resulted in a judgment in favor of plaintiff. Defendant has appealed and asserts that the court of common pleas was without jurisdiction to bear and determine tbe case because no proper service was over' bad upon him. We do not agree with this contention. By appealing on both questions of law and fact and filing an appeal bond, defendant entered bis voluntary appearance in tbe appellate court and conferred jurisdiction on that court to bear and determine tbe cause. In the case of Cohn v. Clark, 48 Okla. 500, 150 P. 467, this court announced tbe following rule: “Where no valid service of process is had upon the defendant in tbe justice of the peace court, and a motion to quasb service filed by him in this court is overruled and judgment goes against bim, and be file? a bond for appeal to tbe county or district court, which is duly approved, by taking tbe appeal and filing the appeal bond he waives all defects in tbe service of process in the justice court, and a motion made by bim in the appellate court to quash tbe service of process is properly overruled.” See, also, Gulf Pipe Line Co. v. Vanderberg, 28 Okla. 637, 115 P. 782; Summers v. Gates, 55 Okla. 96, 154 P. 1159; Kennedy v. Pulliam, 60 Okla. 16, 158 P. 1140; Cohn v. Cochram Grocery Co., 70 Okla. 168, 173 P. 642. If defendant desired to review tbe ruling of tbe justice court in overruling bis motion to quasb tbe service, be should have proceeded to review tbe judgment of that court by bill of exceptions and petition in error as provided by sections 999 and 1000, C. O. S. 1921. If be bad followed this procedure, be could have superseded the judgment as provided by section 799, C. O. S. 1921. Since be did not follow this procedure, but filed a general appeal bond and took a general appeal, be waived tbe irregular service. The judgment is affirmed. LESTER, C. J., CLARK, V. C. J., and RILEY, CULLISON, SWINDALL, ANDREWS, and KORNEGAY, J., concur. McNEILL, J., absent.