and causing à summons in replevin to issue to the defendant. Thereafter defendant, John Hicks, filed an affidavit before said Justice of the Peace, setting up that the title to real estate was involved in said action, and asking the Justice of the Peace to transfer the cause to the District Court, and thereupon the Justice of the Peace, without a trial of the case, transferred or attempted to transfer said cause direct to the District Court of Cherokee County, and at the January, 1911 term of the District Court both parties appeared and announced ready for trial. The plaintiffs filed a motion to remand the case to the Justice Court, which motion was overruled by the Court and exceptions saved upon such ruling. Plaintiffs then moved the Court for judgment against the defendant by default, which motion was by the Court overruled, the Court holding that the affidavit and motion to transfer from the justice of the peace court to the District Court was a sufficient answer; to which ruling the plaintiffs duly excepted. Plaintiffs then demurred to the alleged answer, which demurrer was by the court overruled, to which ruling the plaintiffs excepted. Plaintiffs electing to stand upon the demurrer, the Court thereupon rendered judgment in favor of the defendant and against the plaintiffs, to which judgment the plaintiff excepted, and appealed to this Court, and assign as error: "First. Said court erred in overruling motion of Plaintiffs in Error to remand said cause to the Court of the Justice of the peace in which the same originated. * * "Fourth. Said Court erred in rendering judgment against plaintiffs in error and in favor of defendant in error." The first assignment of error is, no doubt, good, for the reason that there is no. law authorizing a justice of the peace to transfer a replevin case to the District Court, and if there had been a trial of the case by the justice of the peace, an appeal at that time could not have been taken from the justice of the peace court to the District Court. But the files and transcript having been filed in the District Court, and no objections being urged to the jurisdiction of the Court as to subject matter or parties, both parties appearing and announcing ready for trial, the Court could accept jurisdiction and proceed with the trial of the case, but in that event the case should proceed as if originally filed in that court and would therefore be governed by the practice and procedure of the District Court. The Court erroneously proceed, no doubt, upon the theory that this case should be tried the same as if it were there on appeal from the Justice Court, and in such cases the authorities, in some instances, have permitted great latitude with reference to pleadings, which are not applicable in this case. This cause, as hereinbefore indicated, was in the District Court as an original case and is controlled by Section 4703 Rev. Laws 1910, which is as follows: "A civil action may be commenced in a court of record by filing in the office of the Clerk of the proper Court a petition and causing a summons to be issued thereon." 5 Okla. 656; 49 P. 53; 43 Kans. 596. The appearance of the parties waived the necessity of the issuance and service of summons, but did not avoid the necessity of a petition being filed thereon. The record revealing neither petition or answer in this case, the Court was without power to render judgment therein. It therefore follows that the justice of the peace court did not lose jurisdiction of the case. The judgment of the District Court is reversed and the cause remanded with directions to proceed in accordance with this opinion. Hayes, C. J., and Turner, Williams and Kane, JJ., concur. CLINTON & OKLA. WEST. RY. CO., Pl't in Error, VS. JAMES C. DEAN, Defendant in Error. (Rendered October 14th, 1913.) Error from Superior Court of Custer County. J. W. Lawler trial Judge. No. 5329 Dismissed Where neither the defendant in error nor his attorney are served with summons in error, and neither of them waive such service, and the time having elapsed in which proper service could be made, on motion of such defendant in error the appeal should be dismissed. Section 6067, Comp. Laws 1909 providies: "The Supreme Court may reverse, vacate, modify judgments of the District Court * **" etc, Section 6069 idem: Proceedings to obtain such reversal * * shall be by petition in error filed in the Supreme Court * and thereupon a summons in error shall issue and be served or publication made as in the commencement of an action. on the attorney of record in the original case sufficient * *99 * * (Syllabus by the Court.) Opinion of the Court by LOOFBOURROW, J. A service shall be From the record in this case it appears that in Febru ary, 1912, in the Superior Court of Custer County Okla. homa, there was then pending to separate causes of action, each being a condemnation proceeding one in which James C. Dean was Plaintiff and the other R. O. Dawson Plaintiff, and in both of which the Clinton & Oklahoma Western Railway Company was defendant, and by consent of parties both cases were disposed of in one trial to the same jury; R. J. Shive being the attorney in said trial for James C. Dean, and A. E. Darnell, being the attorney in said trial for R. O. Dawson. After verdict and judgment in both cases a case-made was prepared by the Plaintiff in error, the same being delivered to the defendant in error, Dean, and suggestions of amendments were made by R. J. Shive, attorney for Dean Thereafter the case was settled, Attorney A. E. Darnel signing the name of R. J. Shive, attorney for James C. Dean, Defendant in error, accepting and acknowledging service of the case-made, and said Darnell also signed the name of R. J. Shive, attorney for James C. Dean defendant in error, to stipulation attached to case-made, waiving the issuance and servics of summons in error from the Supreme Court of the State of Oklahoma, and on September 15th, 1913 R. J. Shive, attorney for defendant in error, filed a motion to dismiss the appeal of the plaintiff in error for the reasons: 1st. That no summons in error has ever been issued and the time allowed for doing same has expired. "2nd. Defendant in Error has never been served with summons in error, nor has he ever waived service." In support of such motion Shive attched thereto an af. fidavit, in substance: * # 29 * I have never been served with summons in error, neither has my client ever been, neither have I ever waived summons in error. On page of the casemade filed in the Supreme Court is what purports to be an acceptance of service of the case-made and also what purports to be a waiver of service of summons in error, with the name of R. J. Shive signed to it, but the same is not my signature. I did not sign same and did not authorize any other person to do so, but whoever signed said name to said instruments did so without my knowledge In opposition to such motion to dismiss, the attorney for plaintiff in error flied counter affidavits, among them be ing the affidavits of A. E. Darnell, in which affidavits Darnell states that he signed the name of R. J. Shive to case-made and the stipulation waiving issuance of sum. mons in error and further states that he relied solely on letter written by R. J. Shive for his authority for signing the name of R. J. Shive to such instrument, said letter reading as follows: "Friend Darnell. "Sulphur, Okla., May 19, I suppose that Cornell will serve notice to settle the c18e-made in the Dean and Dawson case in a few days. I want you to see that he does not put anything in the record that does not belong there. When he delivered the case-made to Dean, he handed him a letter stating that he desired to except more parlicularly to the instructions. Now, you know that he has no right to save exceptions to instructions now or to make any objection that was not made at the time. Patterson vs. State 4 Okla. Crim. 542. The instructions were the same in both cages. I will not be there when the case-made is settled. Will not be there until the County Court meets in July. Respectfully, R. J. Shive." From this letter it does not appear that Mr. Darnell was authorized to waive the issuance of summons in error in this case. We have carefully examined the numerous affidavits submitted by both sides of this controversy and fail to find any evidence of authority being conferred upon A. E. Darnell to waive the issuance of summons in error and the service thereof in this case for and in behalf of the defendant in error, James C. Dean. It is not sought by any of the parties hereto to charge Mr. Darnell with any bad faith in this transaction, as it appears to have been purely a misunderstanding or misapprehension on the part of Mr. Darnell in signing the name of Shive. The time having elapsed in which service of summons in error may be had, the appeal must be dismissed. Hayes, C J., and Turner, Williams and Kane, JJ. concur. DIGEST OF DECISIONS ON SPECIAL TOPICS Admission of Evidence of Defeat. Admission of evidence that the continual striking of a hammer will jar it off the handle, when it is improperly wedged, held not error, in an action for injury to an employe fron the negligence of the defendant's superintendent, whom he was temporarily assisting at his own |