COURTS — Statehood — Transfer of Causes to U.S. Courts. The Oklahoma enabling act (Act June 16, 1906, c. 3335, sec. 16, 34 Stat. 276), as amended (Act March 4, 1907, c. 2911, sec. 1, 34 Stat. 1286), provides that "all cases pending in the United States Court of Appeals in the Indian Territory arising under the Constitution, laws, or treaties of the United States, * * * and in cases of diversity of citizenship where there shall be more than two thousand dollars in controversy, exclusive of interest and costs, shall be transferred to the proper United States Circuit or District Court for proper disposition: Provided, that such transfer shall not be made in any case where the United States is not a party except on application of one of the parties in the court in which the case is pending, at or before the second term of such court, after the admission of said state." Where such case is transferred to the Supreme Court of this state by operation of such provision, and is regularly assigned for hearing at the first term of said court, the attorney of record for the plaintiff in error having had notice thereof, and said cause having been regularly reached for trial on the calendar, and no one appearing for said plaintiff in error, but the attorney of record appearing for the defendant in error, and said cause being then and there, in accordance with the custom and rule of said court, regularly submitted for final decision or determination, said plaintiff in error waives its right to thereafter move for said cause to be transferred to the proper United States Circuit or District Court, this constituting an election to proceed in the state courts, and precludes the plaintiff in error from thereafter having said cause transferred to the federal court for review. Kane, J., dissenting.
(Syllabus by the Court.)
WILLIAMS, C. J. (after stating the facts as above).
The same question is involved in this case as was recently decided by this court in the case of Choctaw, Oklahoma Gulf Railroad Company v. Burgess, ante, p. 110 95 P. 606. The facts in this case are identical with those in that case, wherein it was held that the plaintiff in error, as a matter of law, under the record in that case, consented for this court to take jurisdiction of said cause, and when jurisdiction had been acquired under such circumstances it became complete, and that the plaintiff in error was bound by the same, and could not thereafter be heard to reverse its election. Under the authority of that case, and the authorities therein cited, the motion to transfer is denied.
Dunn, Turner, and Hayes, JJ., concur; Kane, J., dissents.