MCCLUNG v. HARRIS

MCCLUNG v. HARRIS
1901 OK 37
65 P. 941
11 Okla. 64
Decided: 07/06/1901
Supreme Court of Oklahoma

KYLE MCCLUNG
v.
A. D. HARRIS.

Appeal from the District Court of Kay County; before Bayard T. Hainer, Trial Judge.

Syllabus

¶0 APPEAL WILL NOT LIE, WHEN. An appeal will not be entertained from a decree entered in a district court or other inferior court, in exact accordance with the mandate of this court, upon a prior appeal. If such an appeal is taken this court will examine the decree entered and if it conforms to the mandate, dismiss the appeal with costs upon application of the adverse party.

Pancoast & Bowles for appellant.
Ransom & Bailey and Dale & Bierer, for appellee.

BURWELL, J.:

¶1 This is an action of mandatory injunction from the district court of Kay county, and comes here a second time on appeal, having been considered by this court at the January, 1901, term, and in the opinion then handed down the trial court was directed to enter a certain judgment. When the mandate from this court reached the court below, the plaintiff presented an amended petition, setting up facts which occurred prior to the trial of the original case appealed to this court, and asked leave to file the same, and to be permitted to litigate the additional matter set up in such amended petition. The plaintiff's application to amend was denied, and from this order and the judgment entered by the district court, pursuant to the mandate from this court, plaintiff appeals, and the defendant in error moves the dismissal of such appeal. In our judgment the motion should be sustained. It was the duty of the plaintiff to plead all of the facts which would afford him any relief in the case when it was tried the first time in the court below. This court took the record as it found it, and from the record the defendant was clearly entitled to the relief granted, and under the facts disclosed by the case- made, in equity and under the authorities, no other judgment should have been rendered. The trial court, under the mandate, had no discretion in the premises and, therefore, this appeal should be dismissed at the cost of appellant. (Stewart v. Salamon,

¶2 It is so ordered.

¶3 Hainer, J., having presided in the court below, not sitting; all the other Justices concurring.