Harden v. Harden

1943 OK 151, 136 P.2d 201, 192 Okla. 345, 1943 Okla. LEXIS 162

Opinion

PER CURIAM.

The parties will be referred to as they appeared in the trial court. This is an appeal from an order of the district court made on June 2, 1942. The appeal is by transcript and attacks the order sustaining a demurrer to the petition of plaintiffs below. The petition asserts rights, all of which are based upon an assumption that the order admitting the will of Andrew J. Harden, deceased, to probate will be vacated on appeal.

A motion to dismiss has been filed on the ground that all issues have been fully determined in a prior proceeding in an opinion rendered by this court on the 12th day of January, 1943, cause No. 30771, entitled Harden v. Harden et al., 192 Okla. 131, 134 P. 2d 351. The petition for rehearing was denied on March 2, 1943, and on March 9, 1943, the mandate was issued to the district court affirming the decree admitting the will to probate. A response to the motion to dismiss was called for and response was finally filed out of time, by leave granted, and after the time originally given in which to file response. Defendants have moved to strike the response. The matter shall be disposed of on the motion to dismiss and the response.

The motion to dismiss should be sustained. In the case of Harden v. Harden, supra, which opinion has become final, this court affirmed the action of the trial court in admitting the will to probate. The questions raised in the subsequent proceeding having been rendered moot by the opinion in Harden v. Harden, supra, the appeal is dismissed. See Anderson-Prichard Refining Corp. v. Board of County Com’rs, Oklahoma County, 186 Okla. 78, 97 P. 2d 5.

CORN, C. J., GIBSON, Y. C. J., and RILEY, OSBORN, BAYLESS, WELCH, HURST, and ARNOLD, JJ., concur. DAVISON, J., not participating.