State Ex Rel. Miller v. Dudley

Citations

• 165 P. 127
• 63 Okla. 241
• 1917 OK 195
• 1917 Okla. LEXIS 534

Syllabus

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Mandamus—Remand— Grounds — Entry of Judgment Without Retrial.</p> <p>F. sued M. in the district court for cancellation of a deed executed by F. to M. on the ground -'of fraud and mental incapacity. Judgment was rendered in favor of F. can-celling the deed. Upon appeal to the Supreme Court the cause was “reversed and remanded for a new trial.” After the mandate had been issued and spread of record in the district court, M. filed his motion for judgment on the opinion and mandate. F., by leave of court, then filed his amended petition. M. filed his motion to strike the amended petition. The court overruled both the motion for judgment and the motion to strike. In an action by M. for writ of mandamus against the district judge to compel him to enter judgment on the mandate and opinion of the Supreme Court, held, that it was the duty of the trial court to grant a new trial; that the proceedings thus far taken in a retrial of the case being interlocutory and reviewable on a second appeal after a retrial, mandamus will not lie to compel the district judge to enter judgment without a retrial.</p>