Powers v. Van Dyke

1911 OK 294, 117 P. 797, 29 Okla. 398, 1911 Okla. LEXIS 322

• Court: Supreme Court of Oklahoma
• Decided: September 12, 1911
• Docket: 353
• Status: Published

Opinion

TURNER, C. J.

On rehearing of this cause, the original ^ opinion in which is reported in 27 Okla. 27, 111 Pac. 939, it is urged by plaintiffs in error that our judgment there rendered, affirming the judgment of the trial court, is too sweeping; that the same should have been by us affirmed in part only, and, in effect, that plaintiffs take nothing by their suit and be taxed with the costs, and, further, that that part of said judgment which reads:

“It is further ordered, considered and adjudged by the court that all claims of plaintiffs to the lands in controversy, to wit: (description), occasioned by reason of the alleged conveyance of George W. Bunton to them, be divested out of them, and that all cloud on defendants' title occasioned thereby be removed.”

—be vacated and set aside.

The point is well taken, for the reason that, as there was no affirmative relief prayed for by way of cross-petition, this relief should not have been granted.

The cause is accordingly reversed and remanded, not for a new trial, but with directions to vacate and set aside that part of the judgment complained of. In all things else the judgment of the trial court is affirmed.

All the Justices concur.