¶1(dissenting).
¶2The majority opinion relies on 20 O.S. 1961 § 658, to require the Court of Common Pleas to reinstate applicant’s cross-petition and transfer the cause to the District Court. This statute is not authority for ousting the jurisdiction of the Court of Common Pleas. I believe the jurisdiction should be determined by the action which the plaintiff filed rather than the cross-petition which the defendant filed.
¶3If the legislature had intended, to require the mandatory transfer of an entire cause upon the filing of a cross-petition for an amount in excess of the jurisdiction of the court, it would have specifically provided for such. The general rule is stated in 14 Am.Jur., Courts § 221, p. 416:
“The filing of a counterclaim in excess of the jurisdictional limit of the court does not oust the court of jurisdiction of 'the plaintiff’s claim. The court should proceed to hear and determine the plaintiff’s claim. So far as the disposition of the counterclaim is concerned, the court has no jurisdiction to hear and determine a setoff or counterclaim in excess of the jurisdictional amount. Under peculiar statutory provisions in some states, courts have been held entitled to adjudicate upon a counterclaim, although it is for an amount exceeding the jurisdiction of the court.”
¶4Our legislature has specifically provided for the disposition of counter claims and set-offs, which are in amounts in excess of a court’s jurisdiction, in the statutes governing the procedure in our other courts of limited jurisdiction. For the County Courts which have a maximum jurisdiction of $1,000 in civil actions, the legislature has provided in 20 O.S.1961 § 271:
“Provided further, that where a counter claim or set-off shall be filed in any action in the county court of which the county court shall not have jurisdiction, it shall be the duty of the county court, on motion and satisfactory showing by affidavit or other evidence that said counter claim or set-off is a proper counter claim or set-off and that said counter claim or set-off is made and filed in good faith, the county court shall certify said action to some other court in the same county for trial, whose jurisdiction will authorize it to adjudicate the matters involved in said counter claim or set-off.”
¶5As to the justice of the peace courts, the legislature has provided in 39 O.S.1961 § 224:
“When the amount due to either party exceeds the sum for which the justice is authorized to enter judgment, such party may remit the excess, and judgment may be entered for the residue. A defendant need not remit such excess, and may withhold setting the same off; and a recovery for the amount set off and allowed, or any part thereof, shall not be a- bar to his subsequent action for the amount withheld.”
¶6Thus it is seen that the legislature has specifically provided that the County Courts must transfer an action when the counter claim- or set-off is in excess of the jurisdictional amount. The legislature has specifically provided that justice of the peace courts may continue to have jurisdiction when the counter claim or set-off- exceeds the jurisdictional amount. Until the legislature speaks specifically on this matter as to the Court of Common Pleas of Tulsa County, I believe the general rule should apply and the Judge of that Court in the instant case was correct in dismissing the cross-petition for lack of jurisdiction when defendant would not remit the amount in excess of the court’s jurisdiction. If the legislature had intended any other disposi*488tion, it would have specifically provided for it.
¶7The proviso that has been added to the syllabus improves the majority opinion but the foregoing comments still apply.
¶8I dissent.