Opinion Filed February 21, 1933. Rehearing Denied April 18, 1933.
1. Mandamus — Writ not Issued Directing Trial Court How to Determine Issues in Pending Cause.
This court will not issue a writ of mandamus to a trial court directing it how to determine the issues in a cause pending in that court.
2. Same — "Mandamus" Defined.
Under our Code of Civil Procedure "mandamus" is a special proceeding, addressing itself to the equity powers and conscience of a court or judge, for the enforcement of a clear legal right, for which the law provides no adequate remedy.
3. Same — Writ Denied Where Adequate Remedy at Law.
Although a petitioner for a writ of mandamus may show himself entitled to a clear legal right to relief, yet he is not entitled to relief by mandamus if he has a plain and adequate remedy in the ordinary course of law.
4. Same — Writ Requiring District Judge to Enter Judgment Conforming to Mandate of Supreme Court Denied Where Judgment Substantially Conforms to Mandate.
On a petition for writ of mandamus to require a district judge to enter a judgment in conformity with a mandate of this court, this court will examine the judgment rendered by the trial court, and if it substantially conforms to the mandate of this court, the writ of mandamus will be denied.
Petition for a writ of mandamus by E.E. Reisinger against Thomas S. Hurst, District Judge, et al. Writ denied.
S.A. Horton, for plaintiff.
E.M. Connor and W.M. Blake, for defendants.
This is an original action in mandamus wherein the petitioner asks this court to direct the Honorable Thurman S. Hurst, as district judge, to vacate an order granting a new trial, to render a judgment, and to adjust the costs in a certain action entitled "E.E. Reisinger v. Van Huss Van Huss," No. 32297, in the district court of Tulsa county, Okla. An appeal was taken from the judgment of that court in that cause and the judgment of that court was affirmed in part and reversed in part by the decision of this court. Reisinger v. Van Huss, 156 Okla. 8, 9 P.2d 724.
After the mandate of this court had been received by the trial court, the petitioner herein filed a motion asking the trial court to render a judgment in his favor. He contended that there were no issues in that cause in that court that had not been determined by the decision of this court, supra. Van Huss Van Huss denied that contention and insisted that there were issues undetermined by the decision of this court for trial in that court.
A review of the record convinces us that the petitioner herein is not entitled to a writ of mandamus as prayed for. This court, in the decision on the appeal, supra, did not direct the trial court what judgment to render, and this court, in a mandamus proceeding, will not direct the trial court what judgment to render in this case. We find nothing in the record from which we can conclude that the petitioner does not have a plain and adequate remedy by appeal from any judgment the trial court may render, and we must assume that any judgment the trial court renders will conform to the opinion of this court in the decision, supra.
The petition for a writ of mandamus is denied.
RILEY, C. J., CULLISON, V. C. J., and SWINDALL, McNEILL, OSBORN, BUSBY, and WELCH, JJ., concur. BAYLESS, J., absent.
Note. — See under (2) 18 R. C. L. 131, 132; R. C. L. Pocket Part, title "Mandamus," § 44. (3) annotation in 58 L. R. A. 859; 18 R. C. L. 100.