That defendants, with one exception, are nonresidents, and no personal judgment can be rendered against them, does not deprive the court of jurisdiction, in an action to declare a deed a mortgage.18

§ 209. Jurisdiction of subject-matter

Jurisdiction of the subject-matter is the power to deal with the general subject involved in the action.1

19

It is to be determined from the allegations of the petition, and, if the petition fails to disclose such facts as will authorize a court of equity to hear and determine the matter complained of, such court is without jurisdiction.20

Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy is beyond the territorial jurisdiction of the court, and it has the power to compel defendant to do all things necessary, according to the lex loci rei sitæ, which he could do voluntarily, to give full effect to the decree against him.21

A district court having jurisdiction of the holder of a title to land. has jurisdiction to render a judgment requiring him to make a conveyance of it and to enforce such decree by process against him, where the land is situated in another state.22

The power to establish and enforce a constructive trust is a matter properly cognizable in a court of equity.23 The rule which limits the jurisdiction of equity to cases where there is no adequate remedy at law does not apply.24

Where court of general jurisdiction has secured jurisdiction of parties holding legal titles to land in another state, it may impress trust as to such land and order trustees to execute conveyance.25

18 Clark v. Shoesmith, 139 P. 426, 91 Kan. 797.

19 Glacken v. Andrew (Okl.) 169 P. 1096.

20 Myers v. Berry, 41 P. 580, 3 Okl. 612.

21 Gordon v. Munn, 106 P. 286, 81 Kan. 537, 25 L. R. A. (N. S.) 917.

22 People's State Bank v. T'Miller, 116 P. 884, 85 Kan. 272.

23 Goldrick v. Roxana Petroleum Co. (Okl.) 176 P. 932; McCoy v. McCoy,

121 P. 176, 30 Okl. 379, Ann. Cas. 1913C, 146.

24 Goldrick v. Roxana Petroleum Co. (Okl.) 176 P. 932.

25 Meador v. Manlove, 156 P. 731, 97 Kan. 706.

When a district court has jurisdiction of the parties, it has jurisdiction to

The district court has jurisdiction of the subject-matter of an action to declare a resulting trust, where it has acquired jurisdiction of the parties thereto.26

Equity will not permit a trust to fail for want of a trustee.27

§ 211. Consent and waiver

Jurisdiction of the person may be conferred by consent, or the want thereof waived by voluntary appearance,28 but parties cannot by consent or stipulation invest a court with jurisdiction not given by law, and this rule applies to causes involving the necessary jurisdictional amount.29

enforce trusts, although in so doing the title to land which does not lie within its territorial limits is incidentally affected. Manley v. Carter, 52 P. 915. 7 Kan. App. 86.

26 Bockfinger v. Foster, 62 P. 799, 10 Okl. 488, judgment affirmed 23 S. Ct. 836, 190 U. S. 116, 47 L. Ed. 975.

27 Hill v. Hill, 49 Okl. 424, 152 P. 1122.

28 Hobbs v. German-American Doctors, 78 P. 356, 14 Okl. 236.

Where the district court had original jurisdiction of the subject-matter, and the case comes into that court improperly by appeal, and both parties appear and go to trial without objection, the question of jurisdiction as to the manner of getting in court is waived. School Dist. No. 94, Grant County, v. Gautier, 73 P. 954, 13 Okl. 194.

Where a trustee under a chattel mortgage brings an action to enforce his trust, he thereby confers on the court in which the action is brought jurisdiction over him in regard to the settlement of a counterclaim interposed by defendant concerning the same transaction, though such jurisdiction does not otherwise exist, under Code Civ. Proc. § 55, providing that actions, with certain exceptions mentioned, must be brought in the county where the defendants or some of them reside or may be summoned. Wyman v. Herard, 59 P. 1009, 9 Okl. 35.

Where receivers of a railroad contest matters at issue in proceedings to enforce a lien against railroad property, they cannot be heard for the first time after an adverse decision to complain that the court was without jurisdiction, even though they were appointed by another court. Trocon v. Scott City Northern R. Co., 139 P. 357, 91 Kan. 887.

Where jurisdiction of the person is lost by irregularities, it may be restored by the appearance or waiver of the defendants or failure to duly object. Hobbs v. German-American Doctors, 78 P. 356, 14 Okl. 236.

Where local and nonresident defendants were jointly sued and nonresident defendant appeared generally without raising question of jurisdiction, his demurrer to evidence and his motion to dismiss for want of jurisdiction were properly overruled. Makemson v. Edwards, 101 Kan. 269, 166 P. 508. As to appearance, see post, $$ 506-511.

29 Model Clothing Co. v. First Nat. Bank of Cushing, 61 Okl. 88, 160 P. 450. The question of jurisdiction of the subject matter cannot be waived by the parties, and the court should, on its own motion, though the question be not

Filing a demurrer to a petition and moving to make it more definite is not a request for affirmative relief, such as will waive defendant's objection to jurisdiction over his person. Where defendant's objection to the court's jurisdiction of his person has been overruled, he may defend without waiving his objection; but where he asks affirmative relief after his objection to jurisdiction over his person has been overruled, he waives such objection.30

§ 212. Ancillary jurisdiction

A court having possession of property may determine all questions relative to title, possession, and control of same.31

§ 213. Rule of comity

Where actions are properly brought and are pending in different jurisdictions, the rule of comity does not influence the proceedings of the court to which jurisdiction first attaches.32

The laws of another state will not be given force in this state as a matter of comity, where it would be, in effect, to overturn the policy of this state with respect to such cases, or be in violation of our express statute.3

33

Comity does not require that the courts of Oklahoma uphold foreign contracts violative of the penal statutes or public policy of Oklahoma, regardless of the validity of such contracts in the state where they were made.34 But the rule that a penal statute will not be enforced outside the territorial jurisdiction of the Leg

raised by the parties, inquire into its jurisdiction. Apache State Bank V. Voight (Okl.) 161 P. 214.

Where the statute confers on the road viewers and the board of county commissioners power to determine whether or not a proposed public road is of public utility, the parties to proceedings for laying out a road cannot by agreement confer on the court the power to determine such question on appeal from an award of damages made by the commissioners after determining the question in the affirmative. Van Bentham v. Osage County Com'rs, 30 P. 111, 49 Kan. 30.

30 Commonwealth Cotton Oil Co. v. Hudson, 62 Okl. 23, 161 P. 535. 31 Darrough v. First Nat. Bank of Claremore, 56 Okl. 647, 156 P. 191. The ancillary jurisdiction of a court to determine all questions as to rights in property of which it has taken possession, may be exercised by federal courts, though not authorized by statute. Id.

32 Missouri, K. & T. Ry. Co. v. Bradshaw, 132 P. 327, 37 Okl. 317.

33 Mackey v. Pettijohn, 49 P. 636, 6 Kan. App. 57.

34 Coffe & Carkener v. Wilhite, 56 Okl. 394, 156 P. 169.

islature enacting it applies only to statutes entirely penal, and not to those which are in part compensatory.35

§ 214. Shown by record

The county court, while of limited jurisdiction, is a court of record, and not an inferior court in the sense that its judgment may be disregarded because jurisdictional facts do not appear on the face of its proceedings.3

36

The general rule that the silence of the record of an inferior tribunal on a jurisdictional point is fatal applies in cases of col

35 Great Western Machinery Co. v. Smith, 124 P. 414, 87 Kan. 331, 41 L. R. A. (N. S.) 379, Ann. Cas. 1913E, 243.

Rev. St. Mo. 1909, § 3151, making railroads responsible for loss by fire, being compensatory and remedial, may be enforced in an action in Kansas. Hollinger v. Missouri, K. & T. Ry. Co., 146 P. 1034, 94 Kan. 316, Ann. Cas. 1916D, 802.

A contract of purchase made in Missouri contrary to Rev. St. 1899, §§ 8965, 8966 (Ann. St. 1906, pp. 4150, 4152), relating to pools, trusts, and monopolies, subject to be defeated when sought to be enforced in that state by section 8970 (page 4153), providing that such purchasers shall not be liable for the price, but may treat the violation of the statute as a defense, when sought to be enforced in Oklahoma, is subject to the same defense under the laws of comity between different states; the provisions of section 8970 not being contrary to the public policy of the state. Wagner v. Minnie Harvester Co., 106 P. 969, 25 Okl. 558.

A cause of action accrued in Kansas under Laws Kan. 1907, c. 281, § 1, making every railroad liable for damages to any employé in consequence of negligence of its agents, or by any mismanagement of its engineers or other employés. Const. Okl. art. 9, § 36, concurs in holding that the act complained of under the Kansas statute gives a right of action. Held, that the Kansas statute is not against the public policy of Oklahoma, and, although the right of action exists by statute, and not by the common law, it may be enforced in the courts of Oklahoma. Chicago, R. I. & P. Ry. Co. v. McIntire, 119 P. 1008, 29 Okl. 797.

A Nebraska statute, providing that an attorney who was guilty of fraud and deceit shall forfeit treble damages, imposes a penalty, and is not enforceable in Oklahoma. Mohr v. Sands, 44 Okl. 330, 133 P. 238.

20 Rogers v. Duncan, 57 Okl. 20, 156 P. 678.

County courts are entitled to the same presumption of jurisdiction as district courts. Ex parte Brown, 105 P. 577, 3 Okl. Cr. 329.

In proceedings properly before the probate court and within its jurisdiction, it is not necessary that its judgment should contain a recitation of the facts on which the jurisdiction of the court depends. Greer v. McNeal, 69 P. 891, 11 Okl. 519, judgment affirmed 69 P. 893, 11 Okl. 526; Cooper v. Newcomb (Okl.) 174 P. 1029; Holmes v. Holmes, 111 P. 220, 27 Okl. 140, 30 L. R. A. (N. S.) 920.

lateral attack to those jurisdictional facts only which the law directs the tribunal to enter on its record.3

§ 215. Determination of jurisdiction

Courts have inherent power to inquire into their jurisdiction.38 Where the jurisdiction of the court depends on a fact which it is required to ascertain and decide, its judgment determining that fact does exist is conclusive evidence of jurisdiction until set aside or reversed by direct proceedings.39

While superior courts will construe the proceedings of inferior tribunals with regard to mere irregularities with great liberality, so as to uphold such proceedings, yet they will also rule strictly with regard to matters of jurisdiction, for the purpose of keeping such inferior tribunals strictly within the limits of their jurisdiction.1o § 216. Objections

When the court has no jurisdiction of the subject-matter, either party to the suit may avail himself of the objection at any stage, and the court on its own motion will refuse to proceed further, and dismiss the case when its attention is called to the fact.11

37 Gehlenberg v. Hartley, 165 P. 286, 100 Kan. 487.

Presumptions.-An action was commenced in the district court to reform a real estate mortgage and to foreclose the same. Service of summons was obtained by publication. From the affidavit for service it appeared that defendant had removed from the county and resided in the region of the country known as Pike's Peak, and that service of summons could not be made on defendant. The date of the filing of the affidavit was not shown. Held that, in the absence of any showing to the contrary, it would be presumed that the district court had jurisdiction to render a judgment reforming and foreclosing the mortgage. Carey v. Reeves, 5 P. 22, 32 Kan. 718.

Where judgment is rendered by the district court under Laws 1877, c. 39, relating to the collection of delinquent taxes on land bid in by counties at tax sales, etc., and a sheriff's deed founded thereon, and an admission of the parties that the files of the court are lost and cannot be found, are in evidence, they are sufficient, aided by the presumption that jurisdiction was rightfully assumed, to show jurisdiction to render the judgment, if nothing to the contrary is shown. English v. Woodman, 21 P. 283, 40 Kan. 752.

Circuit courts in Ohio are presumed to be courts of general jurisdiction. Poll v. Hicks, 72 P. 847, 67 Kan. 191.

38 Adair v. Montgomery (Okl.) 176 P. 911; Washburn v. Delaney, 30 Okl. 789, 120 P. 620.

39 In re Wallace, 89 P. 687, 75 Kan. 432. 40 State v. Horn, 9 P. 208, 34 Kan. 556. 41 Myers v. Berry, 41 P. 580, 3 Okl. 612.