Opinion
No. 25506.
January 14, 1935. Rehearing Denied June 11, 1935.
(Syllabus.)
Appeal and Error — Subsequent Appeal Dismissed Where no New Issues Involved.
When an appeal has been brought to this court, and the issues of the same have been finally determined and mandate issued to the trial court, in a subsequent appeal, where no new question is involved and the matter is brought to the attention of the court, the same will be dismissed.
Appeal from District Court, Nowata County; H.H. Montgomery, Judge.
Action by Taylor Eli and others against the Carter Oil Company and others. From an adverse judgment, plaintiffs appeal. Dismissed.
D.H. Linebaugh and Paul Pinson, for plaintiffs in error.
J. Wood Glass and L.G. Owen, for defendants in error.
This is the third time the matters involved in this appeal have been to the Supreme Court. The first decision is reported as cause No. 17016, and styled Eli v. Carter Oil Co., 126 Okla. 12, 257 P. 761, in an opinion by Chief Justice Branson.
The second cause is No. 20110, opinion rendered November 22, 1932, by Kornegay, J., Carter Oil Co. v. Eli, 164 Okla. 273, 23 P.2d 985. And the proceedings herein filed in the Supreme Court April 24, 1934.
The last-named opinion reversed the cause and remanded it to the trial court, with directions to overrule the former opinion and enter judgment in accordance with the decision of the trial court.
Upon the last-named opinion, mandate was issued and judgment entered in accordance therewith by the trial court. It appearing, therefore, that cause No. 20110, opinion filed November 22, 1932, finally disposed of the matter, the appeal is dismissed.
On Rehearing.
On the 14th day of January, 1935, a per curiam opinion was filed in this case dismissing the appeal on the ground that all issues involved herein were determined by the opinion filed in the case of Carter Oil Co. v. Eli, 164 Okla. 273, 23 P.2d 985. Thereafter the plaintiffs in error filed motions to vacate the order dismissing the appeal and to vacate and set aside former opinion in this case as void, and a petition for rehearing in connection therewith. Upon direction of the court, the defendants in error have filed a response to the petition for rehearing and the plaintiffs in error have filed a reply thereto.
As stated in the opinion filed herein on January 14, 1935, this is the third time the matters involved in this appeal have been before this court. A searching examination of the authorities cited in the petition for rehearing, the motion to vacate, and the responses filed in this case, together with a review of the long litigation of this subject-matter, convinces us of the correctness of the opinion in holding that no new questions are involved in the instant appeal.
The motions to vacate the order of the court dismissing the appeal, and to set aside former opinion in this cause as void, and the petition for rehearing are, and each of them is, denied.
McNEILL, C. J., OSBORN, V. C. J., and WHEATLEY and GIBSON, JJ., concur. RILEY, WELCH, PHELPS, and CORN, JJ., dissent.