Opinion
No. 1633
Opinion Filed July 12, 1910.
MANDAMUS — Right to Writ — Adequate Remedy at Law. Where relator had an adequate remedy in the Supreme Court after determination of an appeal on the death of the defendant to have the cause revived and to compel the heirs of the defendant to put relator in possession of the property in controversy, which on motion the trial court refused to do, he can not maintain mandamus to compel such action by the trial court.
(Syllabus by the Court.)
Mandamus by the State, on the relation of William H. Goldsborough, against A. H. Huston. Writ denied.
F. W. Jacobs, for petitioners.
A. H. Huston, pro se.
In Goldsborough et al. v. Hewitt, 23 Okla. 66, 99 P. 907, this court held the deed from William H. Goldsborough to Robert Hewitt, dated February 18, 1897, to the homestead in controversy, without consideration and void, that Goldsborough's divorced wife, Louisa Caldwell, had no interest therein, and reversed and remanded the cause.
On the mandate going down, on motion of Goldsborough, the trial court spread the same of record, but refused to proceed further, it appearing that pending said cause in this court and between the date of its submission and decision, to wit, August 13, 1908, the defendant, Robert Hewitt, had died. This is an original proceeding in mandamus in this court to compel the trial court, among other things, to revive the cause against the heirs of Robert Hewitt, and put plaintiff in possession of the property, which on motion the trial court refused to do. For the reason that plaintiff had an adequate remedy in this court, which he has subsequently pursued, as indicated in Goldsborough v. Hewitt, infra, 110 P. 906, the peremptory writ will not run.
All the Justices concur.