JAY v. ZEISSNESS

JAY v. ZEISSNESS
1898 OK 15
52 P. 928
6 Okla. 591
Decided: 02/18/1898
Supreme Court of Oklahoma

F. M. JAY
v.
AUGUST ZEISSNESS.

Syllabus

¶0 1. PENDENCY OF ACTION. Whatever may be the effect of bringing one action while there is another pending between the same parties or their privies, concerning the same subject matter, an action which stands dismissed on motion of plaintiff is no bar to an action by the successor in interest of the defendant, although the original action may be subsequently reinstated.
2. ASSIGNMENTS OF ERROR--Waived. Assignments of error which are not presented in brief of counsel, further than to re-state such assignments, will be considered as waived.

Error from the District Court of Logan County; before Frank Dale, District Judge.

H. R. Thurston, for plaintiff in error.
E. M. Bamford, for defendant in error.

Suit in ejectment by Zeissness against Jay and others. Judgment was for plaintiff, from which defendant Jay appeals. Affirmed.

BIERER, J.:

¶1 It is claimed that the court erred in rendering judgment against the defendant, because, at the time this action was brought, there was another action pending between Jay and one Abdelal, the grantor of plaintiff in this case, in which Jay sought to recover of Abdelal the same property here in controversy.

¶2 Without determining now what would be the effect of bringing an action when there was another pending concerning the same subject matter and between the same parties or their privies, it is sufficient to say that the record does not affirmatively show that the action between Jay and Abdelal was pending at the time this action was brought. This action was brought in March, 1895. The action between Jay and Abdelal was instituted in August, 1891, but the suit was dismissed by the plaintiff in April, 1894, and it appears from the journal of the court that on October 30, 1895, on motion by plaintiff, the cause was reinstated. The motion to reinstate does not appear with the record, and there is nothing to show when it was filed. It is true, there is a mere notation of "F. M. Jay v. A. G. Abdelal, No. 744. Cause reinstated," which appears on the journal as of date May 14, 1894. Such a minute, however, is not sufficient to overcome the general finding of the court against the defendant. It is not even explained in brief of counsel why a motion to reinstate the case was presented in October, 1895, if the cause was, in fact, reinstated in May, 1894. This suit was, therefore, brought while no action was pending, so that there is nothing in this controversy.

¶3 Numerous other matters are stated in brief of counsel as being sufficient to require a reversal of the case, such as, for instance, "error occurring upon the trial of the case and excepted to at the time;" that "the court erred in overruling motion, for a new trial;" "that error was committed in permitting plaintiff to introduce any evidence under the petition, for the reason that the facts therein stated did not constitute a cause of action." Nowhere, however, is it pointed out in what any of these errors consisted. Such assignments will, therefore, be considered as abandoned.

¶4 There appearing no error in the record, the judgment is affirmed.

¶5 Dale, C. J., having presided in the court below, not sitting; all the other Justices concurring.