State ex rel. Moore v. Morrison

BERRY, Justice. This is an application in an original proceeding for a writ of superintending control by L. P. Moore, herein referred to as applicant, which in substance seeks an order directing Ed Morrison, Judge of Common Pleas Court of Tulsa County, herein referred to as respondent, to (1) reinstate applicant’s cross-petition; (2) transfer the cause to the district court; and (3) refrain from exercising further jurisdiction in the cause. The pleadings and acts as set forth in the application, petition, response and briefs, insofar as pertinent to the issue herein to be determined, are: that in Cause No. 58,-365 (now pending before respondent), plaintiff (Crager, G.M.C. Inc.) sued applicant for a deficiency judgment in the amount of $2,200.00 which plaintiff alleged was due after the repossessing and sale of an $18,000.00 truck-tractor; applicant filed answer and cross-petition against plaintiff alleging damages in the amount of $28,500.-00 caused by plaintiff’s wrongful conversion of applicant’s truck-tractor; that subsequently applicant amended his cross-petition by reducing his prayer for damages from $28,500.00 to $10,000.00; and thereafter applicant filed a second amended cross-petition and therein asked for damages in the amount of $28,500.00, and also filed a motion to transfer the cause to the District Court of Tulsa County. Thereafter respondent entered an order overruling applicant’s motion for transfer and dismissing applicant’s cross-petition for want of jurisdiction. The question here presented is one of first impression and concerns the construction of Title 20 O.S.1961, § 658. Applicant’s position is that this statute imposes upon respondent the mandatory [486] duty to transfer the cause to the district court. Respondent’s position is that his court is one of limited jurisdiction and he had no jurisdiction to hear, try or determine applicant’s counterclaim or cross-petition in the amount of $28,500.00; that Sec. 658, supra, does not provide for the transfer of a cause properly lodged within his court by a subsequent cross-petition in an amount in excess of his limited jurisdiction. Respondent cites Title 12 O.S.1961, §§ 272, 273 and 275, and asserts that these sections are not compulsory in that applicant does not forfeit nor waive any rights in another action asserted in his claim by not filing a cross-petition or counterclaim in the instant cause. We note that no challenge was made to the sufficiency of applicant’s cross-petition. Respondent cites Thompson v. Shideler, 90 Okl. 94, 216 P. 161, which held that Shideler’s claim was for more than $200.00 and he could not have asserted it as a counterclaim in a previous justice of the peace court action and therefore was not precluded from recovering costs in the subsequent action. Assuming without deciding that respondent's contention is correct in that applicant may sue in separate action, this, however, does not dispose of the issue now before us. Respondent cites Wilson v. Harlow Publ. Corp, 180 Okl. 284, 69 P.2d 357 and Cunningham v. Moser, 91 Okl. 44, 215 P. 758. These cases held in effect that a defendant could not, by filing a counterclaim in a case in a justice of the peace court in excess of $200.00 thereby divest that court of jurisdiction, and the last of the above two cited cases held that on appeal from a justice court the defendants could not thereby, in an amended counterclaim, seek damages in excess of $200.00. Even though there appear persuasive similarities in the precedents in respect to counterclaims in cases filed in justice courts, in view of 658, supra, we do not find that we can apply them to our present case. Sec. 658, supra, in part provides: “In case it shall appear * * * that said action is beyond the jurisdiction of the court of common pleas, the court of common pleas shall not proceed further therein but shall transfer said cause to the district court in said county and the cause shall be proceeded with in the court to which it shall be transferred as if originally commenced therein.” As we view this section it seems clear that the Legislature intended that a cause would be transferred when it becomes apparent that the common pleas court could not grant the relief sought because of its limited jurisdiction. We do not interpret the intent of the Legislature to be that this excludes a counterclaim which exceeds the jurisdictional limitation. If we would so interpret we would compel multiplicity of lawsuits. Although Perrault v. Holland, Okl., 360 P.2d 240 does not involve the construction of 658, supra, the reasoning therein expressed is applicable here. In that case we held: “The purpose of statutes relating to counterclaims is to make possible the determination of all controversies growing out of a transaction in one proceeding thus avoiding a multiplicity of lawsuits, and such statutes will be liberally construed in order to carry out said purpose.” For reasons herein stated, we find the trial court applied unauthorized judicial force in overruling applicant’s motion to transfer the cause and in dismissing his cross-petition. The writ is granted and respondent directed to reinstate applicant’s cross-petition and transfer the cause to the district court; provided, however, respondent may determine the sufficiency of applicant’s cross-petition if challenged prior to transfer. [487] BLACKBIRD, C. J., and DAVISON, JACKSON and IRWIN, JJ., concur. HALLEY, V. C. J., and JOHNSON and WILLIAMS, JJ., dissent.