Gilliland v. Bilby

• Citation: 156 P. 299,53 Okla. 309,1916 OK 340
• Decision Date: 14 March 1916
• Docket Number: 7674.
• Parties: GILLILAND v. BILBY ET AL.
• Court: Oklahoma Supreme Court

156 P. 299

53 Okla. 309, 1916 OK 340

GILLILAND v. BILBY ET AL.

No. 7674.

Supreme Court of Oklahoma

March 14, 1916

Syllabus by the Court.

Where a cause is reversed in this court, with instructions to enter judgment, and before the mandate is spread of record a motion for a new trial on the ground of newly discovered evidence is filed, which, on motion, was stricken, held no error, as the court was without jurisdiction to do other than enter judgment pursuant to the mandate, and that, if applicable at all, Rev. Laws 1910, § 5037, cannot be here invoked, for the reason that more than one year has expired since the rendition of the final judgment.

Error from District Court, Hughes County; Geo. C. Crump, Judge.

Action by John W. Gilliland against Nicholas V. Bilby and others. Judgment for defendants, and plaintiff brings error. Dismissed.

Warren & Crutcher, of Holdenville, for plaintiff in error.

Lewis C. Lawson, of Holdenville, for defendants in error.

TURNER J.

This is a proceeding in error brought by John W. Gilliland to review the action of the trial court in striking from the files a motion for new trial filed herein. The facts, briefly stated are: This is the second appeal of this cause; judgment being rendered in the former appeal (Bilby et al. v Gilliland, 41 Okl. 678, 137 P. 687) reversing the cause "with instructions to render judgment in accord with this decision." After the cause was decided by this court, upon petition for rehearing being filed, an opinion was written therein (139 P. 988) adhering to the former opinion. The mandate from this court was sent down and filed in the trial court on April 11, 1914. On April 29th, before the mandate had been spread of record by order of court plaintiff in error here filed his motion for new trial upon the ground of newly discovered evidence. Defendants in error filed a motion to strike said motion from the files, which was sustained, and an order made and entered accordingly; also an order that the mandate be spread of record. It is to reverse the order of the trial court striking the motion for new trial from the files that this proceeding in error is sought to be commenced. Motion to dismiss this appeal has been filed, upon the ground, among others, that the trial court had no jurisdiction to entertain said motion for new trial, since the mandate from this court reversing this cause, with directions to enter judgment, had been issued, and that it was the duty of the trial court to proceed only in accordance with such mandate. The motion should be sustained.

In John Hancock Mut. Life Ins. Co. v.

Manning (C. C.) 7 F. 299, after the case had been affirmed by the Supreme Court of the United States and mandate issued to the Circuit Court, defendant filed a motion for new trial upon the ground of newly discovered evidence. In refusing to entertain jurisdiction of said motion the court said:

"* * * This court has no authority to grant the motion, however meritorious the case might be, because it must execute the mandate of the Supreme Court sent here upon the affirmance of the judgment of this court by the Supreme Court. That mandate entitles the plaintiff to an absolute and final judgment. If a mandate of the Supreme Court is open to construction, the court below can resort to the opinion of the Supreme Court, and can apply proper rules of construction, but further than this the court below cannot go."

In the syllabus to the above case it was held:

"The Circuit Court cannot entertain a motion for a new trial upon the ground of newly discovered evidence after a mandate has been received from the Supreme Court entitling the plaintiff to an absolute and final judgment."

In Ex parte Dubuque v. Pacific Railroad, 1 Wall. 69, 17 L.Ed. 514, where the court below, after entering judgment according to the mandate, and thereafter affidavits of ability to show new facts having been filed, granted a motion for a new trial, the Supreme Court issued a mandamus commanding the lower court to vacate and erase the order upon the ground that the authority of the court below extended...