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1911 OK 294
117 P. 797
29 Okla. 398
Case Number: 353
Decided: 09/12/1911
Supreme Court of Oklahoma

POWERS et at.
VAN DYKE et al.

Action by James A. Powers and A. H. Brown against B. F. Van Dyke and Rose Molinari. Judgment for defendants, and plaintiffs bring error. On rehearing, reversed and remanded with directions.

G. A. Brown and Dale, Bierer & Hegler, for plaintiffs in error.
S. B. Garrett and B. F. Van Dyke, for defendants in error.


¶1 On rehearing of this cause, the original opinion in which is reported in 27 Okla. 27, 111 P. 939, it is urged by plaintiffs in error that our judgment there rendered, affirming the judgment of the trial court, is too sweeping; that the same should have been by us affirmed in part only, and, in effect, that plaintiffs take nothing by their suit and be taxed with the costs, and, further, that that part of said judgment which reads:

"It is further ordered, considered and adjudged by the court that all claims of plaintiffs to the lands in controversy, to wit: (description), occasioned by reason of the alleged conveyance of George W. Bunton to them, be divested out of them, and that all cloud on defendants' title occasioned thereby be removed." --be vacated and set aside.

¶2 The point is well taken, for the reason that, as there was no affirmative relief prayed for by way of cross-petition, this relief should not have been granted.

¶3 The cause is accordingly reversed and remanded, not for a new trial, but with directions to vacate and set aside that part of the judgment complained of. In all things else the judgment of the trial court is affirmed.

¶4 All the Justices concur.