116 P. 161 | Okla. | 1911
In Goldsborough et al. v. Hewitt,
Showing cause, as ordered by the alternative writ, respondent pleaded, in effect, that at the time of entering said judgment on the mandate the heirs of said Hewitt (naming them) filed in his court, with notice to said Goldsborough, in effect, a petition in intervention, pursuant to article 24 of the Code of Civil Procedure of the state of Oklahoma, commonly known as the Occupying Claimant's Act, setting up that their father, said Hewitt, had been in quiet possession of said land for 15 years up to the time of his death, since which time, about two years, they had remained *720 in quiet possession thereof; that said Hewitt was holding said land under the deed set aside and had made lasting and permanent improvements thereon consisting of buildings, fences and the clearing of 60 acres of timber land thereof; and prayed that an entry be made upon the journal and a date set for the trial of their rights as occupying claimants under said act. That, after hearing said petition, the application for relief under said act was denied and judgment rendered accordingly, and as stated; that petitioner thereupon prayed an appeal to this court, where their proceeding in error is now pending, in which said Goldsborough is defendant in error, to review said judgment, with supersedeas bond filed in his court fixed at $400; that he is informed and believes that said appeal is in good faith and not for the purpose of delay, and that the judgment appealed from was rendered and entered prior to the application for the alternative writ in this cause; that in his opinion said heirs have a right under said act to petition as they did and appeal from his judgment denying their petition and invoke the opinion and decision of this court thereon — and asks to be discharged, etc.
On the coming down of the mandate, obedience to which is sought to be enforced by our peremptory writ of mandamus, while it commanded the trial court to put plaintiff in possession, for the reason that it did not contemplate the rights of these intervenors as occupying claimants of said land, that question was left open by the mandate. It is well settled that the trial court may decide any matters left open, and its decision thereon is subject to be reviewed by a new proceeding in error. 13 Ency. Pl. Pr., p. 593, note 1. Francis E. Hinkley v. LeviP. Morton et al.,
All the Justices concur.