151 P. 228 | Okla. | 1915
This is the second time that this cause has been before this court. In the first appeal to this court the cause was reversed because the amended petition would sustain a verdict beyond the jurisdictional amount of the county court. St. Louis SanFrancisco Railroad Company v. Charles Egbert,
The only question presented for our determination in this case is whether or not the trial court had authority *625 to make an order allowing the plaintiff to amend his petition so as to reduce the amount sued for to that within the jurisdiction of the court. Plaintiff in error takes the position that the court had such authority. Defendant in error insists that no such amendment was possible after the cause was reversed, and that the only thing the court could do was to dismiss the action. Defendant in error also insists that, even though it should be held to be mistaken as to the general proposition that no amendment in the lower court was permissible, yet in this case the trial court was without jurisdiction to make an order permitting the amendment at the time it did so, because the mandate had not been issued from the Supreme Court and spread upon the record in the trial court, and that therefore the order granting authority to amend and the amendment filed pursuant to said order were void and of no effect.
We will first deal with the latter contention of the defendant in error: It is a general proposition of law that no two courts have jurisdiction of the same cause of action at the same time, and, when a court has once had jurisdiction and lost it by appeal to another court, its authority to deal with the cause is suspended until jurisdiction becomes re-established.Ott v. Boring,
It being undisputed in this case that the appellate court had jurisdiction of this cause at the time it rendered its former opinion herein, it therefore becomes necessary for us to determine when it lost jurisdiction and the same became re-established in the trial court.
In the case of Thomas v. Thomas, supra, this court had under consideration the question as to when it lost jurisdiction of a cause and jurisdiction became re-established in the trial court, and Chief Justice Dunn in the course of the opinion quoted with approval from the opinion in the case of Ott v.Boring, supra:
"It seems from an examination of the authorities to be well-nigh unanimously declared that in the absence of statute making a different provision, the jurisdiction of the appellate court over a given cause terminates whenever regularly, without inadvertence or fraud, it returns the record to the court of general jurisdiction. 2 Ency. of Pl. Pr. 359, 384; 2 Spelling, New Tr. App. Prac., secs. 733, 734; Hayne, New Tr. App., sec. 293; Legg v. Overbagh, 4 Wend. (N.Y.) 188; cases collected in note 21 Am. Dec. 118; Delaplaine v. Bergen, 7 Hill (N.Y.) 591; Browder v. M'Arthur, 7 Wheat. 58 [5 L.Ed. 397];Peck v. Sanderson, 18 How. 42 [15 L.Ed. 262]; Underhill v.Jericho,
And further on in the same opinion he said:
"It being manifest that both the appellate and the trial courts cannot at the same time have jurisdiction to consider, hear, and determine an action, the appellate court must logically, and of necessity, lose jurisdiction when the trial court again secures it, and the trial court acquires jurisdiction to proceed in any action appealed whenever the mandate of the appellate court has regularly reached it and is spread upon its records."
In the case of St. Paul F. M. Ins. Co. v. Peck,
But it is urged that the two last-named cases are not decisive of the question involved here, as the court was not called upon in either of those cases to say whether it could lose jurisdiction before the mandate was issued and spread upon the record in the trial court. And counsel for plaintiff in error takes the position that by rule 10 of this court (38 Okla. vii, 137 Pac. x), the same being as follows, "After the expiration of fifteen days from the filing of an opinion the clerk shall issue a mandate," etc., it was the duty of the clerk of this court to issue a mandate to the trial court after the expiration of 15 days from the date of filing the opinion; and that, inasmuch as the clerk failed to do so, the law will regard that as done by the clerk which he should have done under the rule, and that jurisdiction of this cause therefore became re-established in the trial court at the expiration of 15 days from the date of filing the opinion, although no mandate *628 had in fact been issued by the clerk and spread upon the record in the trial court.
Counsel has failed to cite us to any authority in support of his contention; but nevertheless we have given it careful consideration, and we think that to place his construction upon the rule would be giving it a very strained construction, and one unsupported by reason or authority.
A "mandate" is the official mode of communicating the judgment of the appellate court to the lower court. Horton v.State,
"As the mandate is the official mode of communicating the judgment of the appellate court to the lower court, no proceeding can be had in the lower court in an appealed case until the mandate has been filed in said court." 13 Ency. of Pl. Pr., 837; Lafferty v. Rutherford,
The order and the amendment made in the trial court in this cause were void and of no effect, the same having been made at a time when the trial court was without jurisdiction; therefore the amended petition stood on the day the trial court dismissed it as if no amendment had been made.
This being our view of the law, it is unnecessary to a correct disposition of this case for us to decide whether or not the trial court could have permitted the amendment *629 after the mandate was issued and spread upon its record, and we express no opinion as to same.
The judgment of the trial court dismissing the cause should, therefore, be affirmed. It is so ordered.