STEWART v. STEPHENS

STEWART v. STEPHENS
1952 OK 390
250 P.2d 28
207 Okla 403
Case Number: 35370
Decided: 11/12/1952
Supreme Court of Oklahoma

Syllabus

¶0 APPEAL AND ERROR - Appeal dismissed where issues heretofore decided. Where, from an examination of the motion to dismiss, the record and the response to said motion to dismiss, it appears that there is no judicial controversy that has not heretofore been determined an appeal will be dismissed.

Appeal from District Court, Tulsa County; Eben L. Taylor, Judge.

Action by Eddie Stephens et al. against A.B. Stewart et al. to obtain an injunction. From a judgment for plaintiffs, defendants appeal. Dismissed.

Barnes McCain, Tulsa, for plaintiffs in error.

Harold McArthur and Joe Francis, Tulsa, for defendants in error.

DAVISON, J.

¶1 This is an action for injunction brought by Eddie Stephens et al. against A.B. Stewart et al., involving a controversy over a strip of land. The parties are adjoining landowners. A motion to dismiss has been filed for the reason that all of the issues presented by this appeal have heretofore been determined by this court in Stewart v. Stephens, 196 Okla. 527, 166 P.2d 430, and Youngblood v. Stephens, 201 Okla. 301, 205 P.2d 279.

¶2 The motion to dismiss must be sustained. All three appeals involve the right to possession of a three-foot strip of land in block 7, Berryhart addition to the city of Tulsa, Oklahoma, and also involve the same issues and the same disputed questions of fact adjudicated by the former cases.

¶3 We have held that where on an examination of a motion to dismiss, the record, and the response to the motion to dismiss, it is determined that no issues not heretofore decided are presented, the appeal will be dismissed. Haffner v. Commerce Trust Co., 179 Okla. 235, 65 P.2d 440; Wetumka Ice Corporation v. Williams, 163 Okla. 169, 21 P.2d 724; Releford v. State, 45 Okla. 433, 146 P. 27. Such is the situation in the case now under consideration.

¶4 Appeal dismissed.

¶5 HALLEY, V.C.J., and WELCH, GIBSON, JOHNSON, O'NEAL, and BINGAMAN, JJ., concur.