Relator contends that by virtue of section 23 of the Schedule to the Constitution (Bunn's Ed. § 472) it was the duty of the judge holding the district court for the Ninth Judicial district at Sapulpa, in Creek county, as the successor of the United States Court at Sapulpa, on his own motion to cause to be transferred, by proper order of said state district court, all matters, proceedings, records, books, papers, and documents appertaining to all causes or proceedings relating to estates pending in said United States Court.
On the contrary respondent insists that section 1 of the act of the Legislature of December 21, A.D. 1907 (Laws 1907-08, p. 205, c. 16, art. 1), being Senate Bill No. 11, entitled "An act providing for the removal of all those causes, both civil and criminal, transferred from the courts of the territory of Oklahoma and the United States Courts for the Indian Territory to the courts of this state, including the transcript of the records of mayors' and the United States commissioners' courts in that part of the state formerly known as Indian Territory, which would *Page 326 have been properly triable in any other court of any county or district of the state had such suits or proceedings been commenced after the admission of the state into the Union," points out the methods by which all causes and proceedings, including probate matters, pending at the time of the passage of said act in any of the district courts which are successors to the United States Courts, shall be transferred to any other court in the state of Oklahoma; such method being by petition, verified by the affidavit of the applicant or his attorney of record, such applicant to have a substantial interest therein.
The respondent's general demurrer does not raise the question of defect of parties. C., O. G. R. R. Co. v. Burgess,21 Okla. 653, 97 P. 271; Coulson v. Wing, 42 Kan. 508, 22 P. 570, 16 Am. St. Rep. 503; Seip v. Tilghman, 23 Kan. 290;Chicago Atchison Bridge Co. v. Fowler, 55 Kan. 17, 39 P. 727; Foster v. Board of County Commissioners, 63 Kan. 43, 64 P. 1037; Stiles v. City of Guthrie, 3 Okla. 26,41 P. 383; Weber v. Dillon, 7 Okla. 568, 54 P. 894.
This action should have been brought in the name of the state, on relation of the proper party. Rider v. Brown et al.,1 Okla. 244, 32 P. 341; State v. St. Louis Public Schools, 134 Mo. 296, 35 S.W. 617, 56 Am. St. Rep. 503; State v.Bronson, 115 Mo. 271, 21 S.W. 1125; Moses v. Kerney,31 Ark. 261; Ex parte Fuller, 25 Ark. 443; Wheeler v. Northern Colo.Irrigation Co., 9 Colo. 248, 11 P. 103; Peck v. Booth,42 Conn. 271; Lyon v. Rice, 41 Conn. 245; People v. Martin, 62 Barb. (N.Y.) 570; People v. Northern Central R. R. Co.,164 N.Y. 289, 58 N.E. 138; State v. Carey, 2 N.D. 36, 49 N.W. 164. The relator, as judge of the county court, had original supervision over probate matters, and, the records sought being necessary to the exercise of such duties, could bring mandamus, on his relation, in the name of the state, to compel the transfer of said records, etc. State v. Croom, 48 Fla. 176, 37 So. 303; Holland v. State, 23 Fla. 123, 1 So. 522;Polk v. James, 68 Ga. 128; Manor v. McCall, 5 Ga. 522; Wolfe v.State, 90 Ind. 16; People v. Kingston, 101 N.Y. 82, *Page 327 4 N.E. 348; Jernigan v. Finley, 90 Tex. 205, 38 S.W. 24;State v. Headlee, 22 Wash. 126, 60 P. 126.
Whilst we incline to the view that this action should have been brought in the name of the state, on the relation of the county judge, yet, the respondent not having demurred on the ground of defect of parties, nor otherwise raised such question, the same is waived.
Section 10, art. 7 (Bunn's Ed. § 180) of the Constitution prescribes the jurisdiction of the district court to extend to all cases, civil and criminal, "except where exclusive jurisdiction is conferred on some other court, and such appellate jurisdiction as may be provided in this Constitution or by law." Section 12, art. 7 (Bunn's Ed. § 182), provides that "the county court, coextensive with the county, shall have original jurisdiction in all probate matters. * * *" The district court, as the successor of the United States Court in the Indian Territory at Sapulpa, had no original probate jurisdiction whatever, and had no authority to continue to administer probate matters, except on appeal to such court. The provisions of section 23 of the Schedule, supra, is mandatory upon the district court, as the successor of said court in such county in which the United States Court was located, to transfer to the county court of said county all matters, proceedings, records, books, papers, and documents pertaining to all original causes or proceedings relating to estates. The proviso therein contained relates to the county court; it being contemplated that there would be transferred from the United States Courts to the county courts causes that would, under the new conditions, more properly be cognizable in the county court of another county, and the constitutional convention, anticipating such exigencies, provided that the Legislature might enact laws to meet such conditions. Section 2 of the act of the Legislature of June 4, A.D. 1908 (Laws 1907-08, p. 284, c. 27, art, 1), being Senate Bill No. 221, styled "An act to define the jurisdiction and duties of the county courts and to fix the compensation for the judges thereof," etc., providing that "the county *Page 328 court, coextensive with the county shall have original jurisdiction in all probate matters," is merely declaratory of section 12, art. 7, of the Constitution, supra.
When the state was admitted into the Union, it became the duty of the judge of the district court for Creek county, as successor of the United States Court at Sapulpa, to cause to be transferred to the county court of said county all matters, proceedings, records, books, papers, and documents pertaining to all original causes or proceedings relating to estates that came to said court from said United States Court. At most, section 1 of the act of December 21, 1907, empowers any one having a substantial, beneficial interest in any probate matter that came from the proper United States Court to any district court, where such district court has failed to transfer the same to the proper county court, on petition verified by the affidavit of such beneficiary, or his attorney of record, to require the same to be transferred to the proper county court, whether it be the county in which the United States Court had been located or not. But as to whether or not there is such a conflict between the provisions of sections 23 of the Schedule and section 1 of said act as would render any part of the act invalid it is not now necessary to determine. It having become the duty of the district court, as a matter of law, to transfer to the county court of Creek county all matters, proceedings, records, books, papers, and documents pertaining to all original causes or proceedings relating to estates transmitted to it from the United States Court for the Indian Territory at Sapulpa, where the judge of such court refuses to make such order, it is proper that a writ of mandamus should issue requiring such order to be made. Eberle v. King, 20 Okla. 49,93 P. 748; State ex rel. v. Russell, 21 Okla. 58,95 P. 463; Higgins v. Brown, 20 Okla. 355, 94 P. 703.
The writ will be awarded, to be issued only on the further application of relator's counsel, if an order transferring all matters, proceedings, records, books, papers, and documents pertaining to all original causes or proceedings relating to estates which *Page 329 came to said district court from the United States Court for the Indian Territory at Sapulpa, is not made in the court below upon advice of our conclusions.
All the Justices concur.