It is the contention of plaintiff in error that three points are raised under the various assignments: (1) The jurisdiction of the superior *Page 255 court to entertain an appeal direct from the justice of the peace; (2) the admission of incompetent, irrelevant, and immaterial testimony over the objection of the plaintiff; and (3) the right of possession in and title to merchandise by the bank by virtue of a bill of lading which had been indorsed with sight draft attached, delivered to, and cashed by said bank.
It is the contention of the defendant in error: (1) That the superior court had jurisdiction on appeal from a justice of the peace court; (2) that the case-made fails to contain a recital that it contains all the evidence introduced in the trial court; (3) that the bill of particulars was totally defective and conferred no jurisdiction upon the justice of the peace; (4) that if the testimony complained of was incompetent, yet inasmuch as the case was tried before the court, without the intervention of a jury, if there is any evidence sustaining the finding of the court, it will be presumed that the court only considered legal testimony; (5) that the plaintiff did not become the owner of the coal in question, but handled the draft with bill of lading attached as an item of collection; (6) that if the plaintiff, in fact, became the owner of the coal, he stepped into the shoes of the Oklahoma Western Coal Company and would be liable in the same manner as the coal company for any breach of the original contract of sale; (7) that if the plaintiff became the absolute owner of the coal in question, the transaction is ultra vires and the plaintiff has no standing in court; and (8) that the plaintiff, as a matter of fact, failed to prove that it was the owner of the coal in question.
We are of the opinion that the superior court had jurisdiction on appeal from a justice of the peace court to try said cause de novo. The plaintiff has filed a supplemental brief herein, however, admitting that an appeal would lie from the justice of the peace court to the superior court of Custer county, but makes the contention that a writ of error from the justice of the peace court to the superior court was not the remedy, being contrary to section 14, art. 7, of the Constitution of the state; and therefore all such proceedings were null and void, and that the original judgment rendered by the justice of the peace is still in force *Page 256 and effect. On this proposition we think it sufficient to say that, after the cause was remanded from the superior court to the justice of the peace court, both parties appeared and proceeded to retry the case, without objection, the first trial resulting in a jury disagreeing; the case was again set down for trial, and both parties appeared without objection, and trial was had and judgment rendered in favor of the plaintiff; the cause was again appealed to the superior court, and both parties appeared in the superior court, and, without objection, went into the trial of the case on the merits. The superior court having jurisdiction over the subject-matter, and both parties appearing and going into trial without objection, we think neither should be heard to urge the objection in this court. In School Dist. No. 94 v. Gautier, 13 Okla. 194,73 P. 954, Chief Justice Burford held that:
"In a case where the district court has original jurisdiction of the subject-matter, and the case comes into said court improperly by appeal, and both parties appear, file pleadings, and go to trial without objections, the question of jurisdiction as to the manner of getting into court is waived, and such objection will not be heard for the first time in the Supreme Court."
On the second proposition raised, we are of the opinion that the testimony (supra) admitted over the objection of plaintiff was incompetent, and, inasmuch as there was no other testimony in the record tending to sustain the judgment of the trial court, we cannot assume that the court did not consider the incompetent testimony in reaching the conclusion resulting in the judgment rendered herein. The admission of said testimony was prejudicial error. From the undisputed testimony shown in the record on behalf of plaintiff, the trial court should have rendered judgment for the plaintiff. We are of the opinion that the transfer of a bill of lading for the coal in question to the plaintiff bank and the giving of credit to the consignor for the full amount of the purchase price of said coal as represented by the draft drawn and attached to the bill of lading had the effect to transfer legal title of the property to the plaintiff bank. Halsey v. Warden, 25 Kan. 128.
In the case of American Trust Savings Bank v. Austin, 25 Misc. Rep. 454, 55 N.Y. Supp. 561, it was stated: *Page 257
"A bank receiving a bill of lading from its customer, and discounting a draft by him on the consignee, may enforce its claim against the goods, as against an attaching creditor of the customer, where the consignee refused to honor the draft or receive the goods, though it customarily charged the amount of unpaid drafts back to its customers."
Section 829, Rev. Laws 1910, provides:
"All the title to the freight which the first holder of the bill of lading had when he received it passed to every subsequent indorsee thereof, in good faith and for value, in the ordinary course of business, with like effect and in like manner as in the case of a bill of exchange."
Section 830, Rev. Laws 1910, provides:
"When a bill of lading is made to bearer, or in equivalent terms, a simple transfer thereof by delivery conveys the same title as an indorsement."
While we have carefully considered the contention made by defendant in error and carefully read counsel's brief in support thereof, yet, to a proper determination of the case here on the record, we deem it unnecessary to further discuss the points raised therein.
The judgment of the trial court is reversed, and the court is directed to proceed in said matter in accordance with this opinion.
All the Justices concur.