Opinion by
COLLIER, C.
(after stating the facts as above). The only question now before the court is upon said motion to dismiss this appeal. Plaintiff is in possession of the land involved in this controversy, and the judgment complained of by this appeal does not award any judgment or process by which said possession can be affected, and hence the statement in said journal entry “that Martha Miller is the owner of the real estate and entitled to possession, subject to the rights of the Alpha Oil Company,” is not germane to any action which the court should have taken in carrying into effect the man
date of this court; and such error is harmless, in fact, mere surplusage, and in no wise affects the plaintiff. This court,. having affirmed-the judgment of the lower court that plaintiff had no interest in the money in the hands of the Prairie Oil & Gas Company, plaintiff is not in a position to complain of that part of said judgment which ordered the Prairie Oil & Gas Company to pay the proceeds arising from the sale of oil produced from said land, and the court did not err by refusing to permit the plaintiff to file a supersedeas bond to supersede the judgment and order of the court, directing the distribution of the moneys in the custody of the court and denying a stay of the execution of said order; and in denying plaintiff time in which to apply to this court for a stay of execution of said judgment, and such action of the court is not appealable, for review by this court. As the Prairie Oil & Gas Company was not a party to the action, the said order as to said company is a nullity, except as between the parties to this action under said stipulation, which was made a part of the judgment affirmed in the former appeal in this case. We therefore conclude that the only question for consideration by this court, in considering said motion to dismiss this appeal, is: Did the lower court err to the prejudice of plaintiff in ordering, under the mandate issued by this court, the payment of the money held by the trial court under the stipulation of the parties as to the disposition of said money, which said stipulation was made a part of the judgment affirmed in the first appeal in this case, and is the plaintiff entitled to a review of such action of the trial court? Our review will therefore be confined to answering said questions.
The demurrer admitted every fact well pleaded in the petition, and, said demurrer ■ being sustained, plaintiff
elected to stand upon his petition, and, judgment having been rendered from which the plaintiff appealed to this court, and this court having affirmed the judgment of the trial court, such judgment is final upon the facts pleaded, and such facts cannot again be litigated between the same parties.
Pettis et ux v. McClain et al.,
21 Okla. 521, 98 Pac. 927;
City of El Reno et al. v. Cleveland-Trinidad Pav. Co.,
25 Okla. 648, 107 Pac. 163, 27 L. R. A. (N. S.) 650;
St. L. & S. F. R. Co. v. Hardy,
45 Okla. 423, 146 Pac. 38. It follows that every question involving the merits of this case that could be litigated herein has been finally held adversely to the plaintiff by this court and is now
res adjudicata,
and cannot again be reviewed on this second appeal.
It was the duty of the court, without motion or other act of defendants, to have proceeded to make such order as would fully comply with the said mandate of this court, “to take such other and further proceedings herein as Shall accord with said order and right and justice in the premises.” Said mandate not only vested the trial court with jurisdiction to make the order, disbursing the funds held in said court by virtue of said stipulation, which was made a part of the original judgment in the trial court and the judgment affirmed by this court, but it was the duty of said court to make said order, especially in view of the fact that the case had been fully adjudicated and finally disposed of in this court, which said order is not an order from which an appeal lies to this court. The order made was the only legal order that the court could have made, and had the trial court not done so, this court would have, upon proper application, compelled him to do so.
In the recent case of
St. Louis & S. F. R. Co. v. Hardy,
44 Okla. 423, 146 Pac. 38, this court held:.
“1. Where the findings and conclusions of the Supreme Court on appeal cover the entire case made by the pleadings and evidence in the trial below, and nothing is left open for further examination in the trial court, and the case is simply reversed without directions, it is the duty of the trial court to enter judgment in accord with the opinion. * * *
"2. All questions open to dispute, and either expressly or by necessary implication decided on appeal to this court, will not be open for review on the second appeal, but such decision becomes the settled law of the case as to all such questions, and is not subject to re-examination.
“3. In the absence of exceptional facts it is the duty of parties to ‘put in issue the entire claim or defense available when the case is tried; and a failure to do so cannot be remedied by amendment and repeated trials after appeal to and decision by this court.’
“4. It is the province of this court to construe its own mandate in connection with its opinion; and, if it finds that the trial court has misconstrued the same, the mistake may be corrected by writ of mandamus from this court.”
The duty devolving upon the court under the mandate to make the order disbursing the money, which was in its custody by virtue of the judgment rendered in the trial court and affirmed by this court, and said stipulation being made a part of said judgment, it is entirely immaterial whether the defendant made an oral or written motion, or any motion at all, moving the court to disburse said money. It having been finally adjudged that plaintiff had no interest in the money ordered to be disbursed, it cannot be heard to complain of the order of the trial
court, in the subject-matter of which the plaintiff had no interest.
It may . be, as said by Judge Galbraith in
Wellsville Oil Co. v. Miller, supra:
“That the plaintiff in error could not be dispossessed without being compensated in the manner and as it claimed it should be, but that cannot be done in this suit.”
But this question, and the question of possession, cannot be litigated by this appeal.
We, upon the reasoning stated, are of the opinion that every question that can be reviewed upon the merits of this case was reviewed and adjudged adversely to the plaintiff in the former appeal in this case; that the hearing of this appeal upon the merits would be to grant a rehearing beyond the time and without the grounds fixed by the rules of this court, and thus, without the slightest ground therefor, overruling the order of this court heretofore made, refusing to grant a rehearing. In short, this second appeal is wholly dilatory and entirely without merit.
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Opinion by
COLLIER, C.
(after stating the facts as above). The only question now before the court is upon said motion to dismiss this appeal. Plaintiff is in possession of the land involved in this controversy, and the judgment complained of by this appeal does not award any judgment or process by which said possession can be affected, and hence the statement in said journal entry “that Martha Miller is the owner of the real estate and entitled to possession, subject to the rights of the Alpha Oil Company,” is not germane to any action which the court should have taken in carrying into effect the man
date of this court; and such error is harmless, in fact, mere surplusage, and in no wise affects the plaintiff. This court,. having affirmed-the judgment of the lower court that plaintiff had no interest in the money in the hands of the Prairie Oil & Gas Company, plaintiff is not in a position to complain of that part of said judgment which ordered the Prairie Oil & Gas Company to pay the proceeds arising from the sale of oil produced from said land, and the court did not err by refusing to permit the plaintiff to file a supersedeas bond to supersede the judgment and order of the court, directing the distribution of the moneys in the custody of the court and denying a stay of the execution of said order; and in denying plaintiff time in which to apply to this court for a stay of execution of said judgment, and such action of the court is not appealable, for review by this court. As the Prairie Oil & Gas Company was not a party to the action, the said order as to said company is a nullity, except as between the parties to this action under said stipulation, which was made a part of the judgment affirmed in the former appeal in this case. We therefore conclude that the only question for consideration by this court, in considering said motion to dismiss this appeal, is: Did the lower court err to the prejudice of plaintiff in ordering, under the mandate issued by this court, the payment of the money held by the trial court under the stipulation of the parties as to the disposition of said money, which said stipulation was made a part of the judgment affirmed in the first appeal in this case, and is the plaintiff entitled to a review of such action of the trial court? Our review will therefore be confined to answering said questions.
The demurrer admitted every fact well pleaded in the petition, and, said demurrer ■ being sustained, plaintiff
elected to stand upon his petition, and, judgment having been rendered from which the plaintiff appealed to this court, and this court having affirmed the judgment of the trial court, such judgment is final upon the facts pleaded, and such facts cannot again be litigated between the same parties.
Pettis et ux v. McClain et al.,
21 Okla. 521, 98 Pac. 927;
City of El Reno et al. v. Cleveland-Trinidad Pav. Co.,
25 Okla. 648, 107 Pac. 163, 27 L. R. A. (N. S.) 650;
St. L. & S. F. R. Co. v. Hardy,
45 Okla. 423, 146 Pac. 38. It follows that every question involving the merits of this case that could be litigated herein has been finally held adversely to the plaintiff by this court and is now
res adjudicata,
and cannot again be reviewed on this second appeal.
It was the duty of the court, without motion or other act of defendants, to have proceeded to make such order as would fully comply with the said mandate of this court, “to take such other and further proceedings herein as Shall accord with said order and right and justice in the premises.” Said mandate not only vested the trial court with jurisdiction to make the order, disbursing the funds held in said court by virtue of said stipulation, which was made a part of the original judgment in the trial court and the judgment affirmed by this court, but it was the duty of said court to make said order, especially in view of the fact that the case had been fully adjudicated and finally disposed of in this court, which said order is not an order from which an appeal lies to this court. The order made was the only legal order that the court could have made, and had the trial court not done so, this court would have, upon proper application, compelled him to do so.
In the recent case of
St. Louis & S. F. R. Co. v. Hardy,
44 Okla. 423, 146 Pac. 38, this court held:.
“1. Where the findings and conclusions of the Supreme Court on appeal cover the entire case made by the pleadings and evidence in the trial below, and nothing is left open for further examination in the trial court, and the case is simply reversed without directions, it is the duty of the trial court to enter judgment in accord with the opinion. * * *
"2. All questions open to dispute, and either expressly or by necessary implication decided on appeal to this court, will not be open for review on the second appeal, but such decision becomes the settled law of the case as to all such questions, and is not subject to re-examination.
“3. In the absence of exceptional facts it is the duty of parties to ‘put in issue the entire claim or defense available when the case is tried; and a failure to do so cannot be remedied by amendment and repeated trials after appeal to and decision by this court.’
“4. It is the province of this court to construe its own mandate in connection with its opinion; and, if it finds that the trial court has misconstrued the same, the mistake may be corrected by writ of mandamus from this court.”
The duty devolving upon the court under the mandate to make the order disbursing the money, which was in its custody by virtue of the judgment rendered in the trial court and affirmed by this court, and said stipulation being made a part of said judgment, it is entirely immaterial whether the defendant made an oral or written motion, or any motion at all, moving the court to disburse said money. It having been finally adjudged that plaintiff had no interest in the money ordered to be disbursed, it cannot be heard to complain of the order of the trial
court, in the subject-matter of which the plaintiff had no interest.
It may . be, as said by Judge Galbraith in
Wellsville Oil Co. v. Miller, supra:
“That the plaintiff in error could not be dispossessed without being compensated in the manner and as it claimed it should be, but that cannot be done in this suit.”
But this question, and the question of possession, cannot be litigated by this appeal.
We, upon the reasoning stated, are of the opinion that every question that can be reviewed upon the merits of this case was reviewed and adjudged adversely to the plaintiff in the former appeal in this case; that the hearing of this appeal upon the merits would be to grant a rehearing beyond the time and without the grounds fixed by the rules of this court, and thus, without the slightest ground therefor, overruling the order of this court heretofore made, refusing to grant a rehearing. In short, this second appeal is wholly dilatory and entirely without merit. Plaintiff has had his day in court, in which it was awarded unusual consideration — two oral arguments — and should abide the judgment rendered without complaint, especially in view of the fact that the case was tried alone upon the uncontradicted evidence of plaintiff.
In
Kirkland et al. v. Trezevant et al.,
38 Okla. 445, 134 Pac. 1198, this court, quoting with approval from
Johnson v. St. Paul, etc., Co.,
68 Minn. 408, 71 N. W. 619, said:
»=i= * s= We are of the opinion that an appellate court has the inherent power to dismiss an appeal, which is manifestly * * * without merit.' This power is necessary in order to prevent the court itself from being imposed upon, and the administration of justice being
trifled .with and perverted for mere purpose of delay.” See, also,
Skirvin v. Bass Furniture & Carpet Co.,
43 Okla. 440, 143 Pac. 190;
Skirvin v. Goldstein et
al., 40 Okla. 315, 137 Pac. 1176.
This case has been exhaustively briefed by,the learned lawyers of the several parties; each of the many briefs showing great industry and learning on their part, and each of said briefs has been carefully read and considered by us.
The motion of the defendants in error should be granted, and this appeal dismissed.
By the Court: It is so ordered.