Opinion by
This proceeding-involved a determination of the proper procedure to bе followed in seeking judgment for attorney’s fees by motion after dismissal of the original action under the provisions of Sess. Laws 1919, ch. 22. sec. l, amending Rev. Laws Í910, see. 249. Plaintiff assigns four specifiсations of error, but the only question necessary to be determined in the diposition of this case is that above stated.
On August 7, 1919, Wood, Bancroft & Doty commenced their action in the district court of Osаge county against the instant defendants for the value of certain labor and materiаl furnished. The instant plaintiff was attorney for plaintiffs in the original action and made a prоper indorsement of “Lien Claimed” on the petition as authorized by Comp. St. 1921, sec. 4100. Thereafter the plaintiffs in that action made a settlement with the defendants without the knowledge or consent of their attorney, the instant plaintiff, and on November 10, 1919, before answers were filed, paid all costs and caused said action to be dismissed with prejudice. On March 6, 1920, said attorney filed his motion in the original action for judgment against the defendants for a reasonable sum as attorney’s fees. This motion did not ask that the dismissal be set aside and that the cause be reinstated.' On March 23, 1920, defendants filed a motion to strike plaintiff’s motion from thе files of the ease on the ground that the act of 1919, above referred to, is unconstitutiоnal and void. Various orders were thereafter made and entered, which are not nеcessary to be *87 considered here, and on November 8, 1923, an order was entered sustaining the motion of defendants to strike plaintiff’s motion, the trial court holding that Sess. Laws 1919, ch. 22, is unconstitutional and void. It is from this order that this proceeding in error is prosecuted.
This court has announced the rule that if a trial court has reached a correct conclusion in a case, but that the reasons assigned for such conclusion are erroneous, this court will affirm such judgment irrespective of - the erroneous reasoning on which the correct result is based. Board of Equalization of Oklahoma County v. First State Bank,
Plaintiffs in the original aсtion had an absolute right, before answer was filed, to dismiss their action on payment of costs. Comp. Stat. 1921, sec. 665. After such dismissal, there was nothing pending before the court. The cоurt’s jurisdiction over that action was terminated. There was no subject-matter on which the сourt’s jurisdiction could further operate. Turner v. Fleming,
“A dismissal of a suit made after, and based uрon, an agreement between the parties by which a compromise settlement аnd adjustment of the subject-matter in dispute is made, is a dismissal on the merits, and is equivalent to a judgmеnt of retraxit at common law; and as such would be a bar to further litigation on the same subjеct between tlie parties.”
In order for the court to thereafter acquire jurisdiction of the ancillary proceeding involved in plaintiff’s motion, it was necessary for the dismissal to be set aside and tie original action to be reinstated as a pending actiоn. The motion to set aside the dismissal and to reinstate the cause could have beеn incorporated in the motion for allowance of attorney's fees. Comp. Stаt. 1921, see. 854. This was not done, and nothing was presented to the court which revived its jurisdiction over the dismissed cause of action. Boland v. Reily, Carlton & Hendon,
Defendants have urged in their brief the unеonstitutionality of Sess. Laws 1919, ch. 22, as alleged by them in their motion to strike and as held by the trial court. However, the determination of that question is not necessary to a correct conclusion in this case, and the language of the 6th paragraph of the syllabus in the cаse of Kelly v. Roetzel,
“The Supreme Court will not pass upon the constitutionality of an аct of the Legislature until there is presented a proper case in which it is made to appear that the person complaining has, by reason thereof, been or is about to be, deprived of some rights or privilege to which he was lawfully entitled, or who' is about to be subjected to some of its burdens and penalties.”
It is, therefore, concluded that the motion of plaintiff for the allowance of an attorney’s fee, filed after the dismisal of the original action, and without motion to set aside the dismissal and to reinstatе the cause, presented nothing to the trial court which it had jurisdiction to determine, and the order of that court striking said motion from the files was correct and should be affirmed.
By the Court: It is so ordered.
Note. — See under (1) 18 C. J. p. 1148, § 5; p. 1171, § 63. (2) 6 C. J. p. 799, § 414.