Harsha v. Richardson

Supreme Court of Oklahoma

Harsha v. Richardson

1912 OK 360, 124 P. 34, 33 Okla. 108, 1912 Okla. LEXIS 646

CourtSupreme Court of Oklahoma

DecidedMay 14, 1912

Docket2697

StatusPublished

Cited by8 cases

This text of 1912 OK 360 (Harsha v. Richardson) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harsha v. Richardson, 1912 OK 360, 124 P. 34, 33 Okla. 108, 1912 Okla. LEXIS 646 (Okla. 1912).

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Opinion

KANE, J.

This cause comes on to be heard upon the motion to dismiss the petition in efror for the reason that it appears from an inspection of the case-made that every question, both of law and of fact, involved herein is res judicata by a former decision of this court in the same case reported in Richardson v. Harsha, 22 Okla. 405, 98 Pac. 897. On the former hearing in this court the judgment of the court below was reversed and the cause remanded, with directions to render judgment in accordance with the views of the Supreme Court. After the. cause was remanded no further proceedings of any kind were had except to enter judgment.in accordance with the opinion and mandate of the court. To reverse this action the present proceeding in error was commenced.

The cause was originally instituted in the United States Court for the Western District of Indian Territory, and was decided by that court prior to the advent of statehood and was • pending in the United States Court of Appeals for Indian Territory upon the admission of the state. Thus the law existing in Indian Territory prior to statehood and the procedure thereby provided apply to this cause. In that jurisdiction it .was well settled that the Supreme Court had no power after the lapse of the term to reverse or modify its judgment given at a previous term; that, where a cause had been decided and remanded to the lower court all questions determined when the cause was before the appellate court are res judicata and must be treated as settled; that, where the Supreme Court determines a matter on appeal and remands the case for judgment, the matter so determined cannot be retried in the lower court, nor considered on a *110 second appeal, but can only be considered on motion for a rehearing. Fortenberry v. Frasier et al., 5 Ark. 200, 39 Am. Dec. 373; Real Estate Bank v. Rawdon, 5 Ark. 558; Pulaski County v. Lincoln, 13 Ark. 103; Rawdon v. Rapley, 14 Ark. 203, 58 Am. Dec. 370; Rector v. Danley, 14 Ark. 304; Scott v. Eaton, 26 Ark. 17; Perry v. L. R. & F. S. Ry. Co., 44 Ark. 386; Vogel v. Little Rock, 55 Ark. 609, 19 S. W. 13; Dyer v. Ambleton, 56 Ark. 170, 19 S. W. 574. To the same effect are Oklahoma City Gas, Elec. & Power Co. v. Baumhoff, 21 Okla. 503, 96 Pac. 758; Chicago etc., Ry. Co. v. Broe, 23 Okla. 396, 100 Pac. 523; Harding v. Gillett et al., 25 Okla. 199, 107 Pac. 665; State Bank of Waterloo, Ill., v. City Nat. Bank of Kansas City, Mo., 26 Okla. 801, 110 Pac. 910; Harper v. Kelley, 29 Okla. 809, 120 Pac. 293.

All of the foregoing cases sustain the doctrine that where a cause is reversed and' remanded by the Supreme Court with directions to proceed in accordance with the decision of the appellate court, and the court below proceeds in substantial conformity with such direction, its action will not be considered on a second appeal.

The motion to dismiss is sustained.

TURNER, C. J., and PIAYES, WILLIAMS, and DUNN, JJ., concur.

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KANE, J.

This cause comes on to be heard upon the motion to dismiss the petition in efror for the reason that it appears from an inspection of the case-made that every question, both of law and of fact, involved herein is res judicata by a former decision of this court in the same case reported in Richardson v. Harsha, 22 Okla. 405, 98 Pac. 897. On the former hearing in this court the judgment of the court below was reversed and the cause remanded, with directions to render judgment in accordance with the views of the Supreme Court. After the. cause was remanded no further proceedings of any kind were had except to enter judgment.in accordance with the opinion and mandate of the court. To reverse this action the present proceeding in error was commenced.

The cause was originally instituted in the United States Court for the Western District of Indian Territory, and was decided by that court prior to the advent of statehood and was • pending in the United States Court of Appeals for Indian Territory upon the admission of the state. Thus the law existing in Indian Territory prior to statehood and the procedure thereby provided apply to this cause. In that jurisdiction it .was well settled that the Supreme Court had no power after the lapse of the term to reverse or modify its judgment given at a previous term; that, where a cause had been decided and remanded to the lower court all questions determined when the cause was before the appellate court are res judicata and must be treated as settled; that, where the Supreme Court determines a matter on appeal and remands the case for judgment, the matter so determined cannot be retried in the lower court, nor considered on a *110 second appeal, but can only be considered on motion for a rehearing. Fortenberry v. Frasier et al., 5 Ark. 200, 39 Am. Dec. 373; Real Estate Bank v. Rawdon, 5 Ark. 558; Pulaski County v. Lincoln, 13 Ark. 103; Rawdon v. Rapley, 14 Ark. 203, 58 Am. Dec. 370; Rector v. Danley, 14 Ark. 304; Scott v. Eaton, 26 Ark. 17; Perry v. L. R. & F. S. Ry. Co., 44 Ark. 386; Vogel v. Little Rock, 55 Ark. 609, 19 S. W. 13; Dyer v. Ambleton, 56 Ark. 170, 19 S. W. 574. To the same effect are Oklahoma City Gas, Elec. & Power Co. v. Baumhoff, 21 Okla. 503, 96 Pac. 758; Chicago etc., Ry. Co. v. Broe, 23 Okla. 396, 100 Pac. 523; Harding v. Gillett et al., 25 Okla. 199, 107 Pac. 665; State Bank of Waterloo, Ill., v. City Nat. Bank of Kansas City, Mo., 26 Okla. 801, 110 Pac. 910; Harper v. Kelley, 29 Okla. 809, 120 Pac. 293.

All of the foregoing cases sustain the doctrine that where a cause is reversed and' remanded by the Supreme Court with directions to proceed in accordance with the decision of the appellate court, and the court below proceeds in substantial conformity with such direction, its action will not be considered on a second appeal.

The motion to dismiss is sustained.

TURNER, C. J., and PIAYES, WILLIAMS, and DUNN, JJ., concur.

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Bluebook (online)

1912 OK 360, 124 P. 34, 33 Okla. 108, 1912 Okla. LEXIS 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harsha-v-richardson-okla-1912.

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