"The relator, Daniel W. Harding, represents and shows to this court: That on, to wit, the day of , 1896, one John Romig held a mortgage on the east half of the northeast quarter of section eighteen (18), in township twenty-two (22) north, of range six (6) west of the Indian meridian, in Garfield county, Okla. T. That the apparent legal title to said land was at the time in one Myrtle Gillett. That said mortgage became in default, and said Romig brought suit to foreclose said mortgage in the district court of Garfield county, Okla. T., and cause proper service by publication to be made on Myrtle Gillett, the apparent owner of said land. That said Romig obtained judgment in said court foreclosing his said mortgage. That said land was sold under the judgment of said court to said John Romig, and the sale duly confirmed, and sheriff's deed executed and recorded, and said Romig then went into possession of said land. That the record of all said proceedings in said court are regular. That thereafter John Romig sold and conveyed said land to the relator, Daniel W. Harding, who immediately went into possession of said land, and has continued in absolute and exclusive possession of said land down to the date of filing this application. That this relator bought said land, relying upon the record in said cause, and without any knowledge of adverse claims to said lands, based upon any matters dehors the record in said cause, and this applicant paid full value for said land in good faith, and has. since entering the possession of said land, permanently improved the same, paid taxes, effected insurance and repairs amounting in the aggregate to over $ 7,000. That afterwards, and during the year 1898, Myrtle Gillett appeared in said district court and filed her motion in the cause of Romig v. Myrtle Gillett (in which the mortgage was foreclosed, and the land sold to Romig as aforesaid) to set aside foreclosure, judgment, and all proceedings had thereunder, for the alleged reason that the said judgment was void because she, as defendant in said action, was a resident of Oklahoma at the time service by publication was obtained on her in said action as a nonresident. That upon said motion said court entered an order setting aside foreclosure, judgment, and all proceedings had thereunder, and ordered this applicant forthwith dispossessed from said land because said court held said judgment was void. That this applicant duly appealed from said order to the Supreme Court of Oklahoma, and that court, on consideration of said appeal, affirmed the order of the lower court in all things. That from the decision of said Supreme Court this applicant appealed to the Supreme Court of the United States, and that court, in the month of November, A. D. 1902, upon consideration of the appeal of this applicant, reversed the judgment of the Supreme Court of Oklahoma in words and figures as follows, to wit: 'The decision of the Supreme Court of Oklahoma will be reversed, and the cause remanded to that court, with instructions to set aside the order of the trial court, and to direct the entry of one which without disturbing the possession of Harding will give to the appellee the right to appear, plead, and make such defense as under the facts of the case and the principles of equity she is entitled to.' A full and complete copy of said mandate is hereto attached as Exhibit A, and made part hereof. That upon said mandate this court issued its mandate to the trial court, to wit: The district court of Garfield county, Okla. T., directing said trial court to set aside the judgment in foreclosure, and to enter an order allowing Myrtle Gillett to appear, plead, and make such defense as under the facts of the case and the principles of equity she may be entitled, 'and that the possession of Daniel W. Harding to the land in controversy be not disturbed, pending said proceedings, and that his rights and interests in the premises be determined in said cause.' A full and complete copy of said mandate is hereto attached, and made a part hereof, marked 'Exhibit B.' That upon said mandate the district court entered its order allowing Myrtle Gillett to plead. A copy of said order is hereto attached and made part hereof as Exhibit C. That in pursuance of said order Myrtle Gillett appeared in said court and filed her pleading, alleging that she had sold all her interest in the land to George P. Rush and Bruce Sanders, and that her only interest in the matter was a vendor's lien of $ 250. That Rush & Sanders held the equity of redemption in and to said land; asked that they be made parties; asked that an accounting be taken of the rents and profits received by Harding, and that they be applied on the payment of the mortgage of Romig; alleged that Harding was a mortgagee in possession. Rush and Sanders filed a motion to be made parties. This motion the lower court overruled. This applicant and John Romig each moved for judgment on the pleadings, and the lower court sustained said motions. A copy of said judgment is hereto attached, and made part hereof as Exhibit D. That thereafter Myrtle Gillett appealed from said judgment to the Supreme Court of Oklahoma, and that court reversed the judgment of the lower court, rendering judgment on the pleadings, and to make Rush & Sanders parties, and to proceed further in accordance with said opinion. That from this judgment of the Supreme Court of Oklahoma this applicant appealed to the Supreme Court of the United States, and said court dismissed said appeal be, cause the decision of the Supreme Court of Oklahoma was not a final decision, and did not fix the substantial law of the case. That the mandate of the Supreme Court of Oklahoma, based on the order of the United States Supreme Court dismissing the appeal of this applicant, was filed in the district court of Garfield county, Oklahoma, on or about the 31st day of May, 1907. That said cause now stands for trial under the several mandates of the Supreme Courts. That no judgment has ever been rendered in said cause on the pleadings of Myrtle Gillett or her grantees, Rush & Sanders, nor has any accounting ever been taken or any trial had, nor has said cause ever been set for trial. That notwithstanding these facts the said George P. Rush and Bruce Sanders gave this applicant notice that they would present their application for the appointment of a receiver in said cause to take possession of said land and collect the rents and profits thereof, to preserve the same pending the trial. That said application for a receiver was presented to Hon. M. C. Garber, judge of said court, on the 10th day of June, 1907, upon the said application for a receiver, and the answer of the relator to said application, and the demurrer of said applicants to all that portion of relator's answer which pleaded and set out the mandate of the Supreme Court of the United States, and the mandate of this court, to the effect that relator's possession should not be disturbed pending the trial.
"Relator alleges that said Judge M. C. Garber sustained a demurrer to his plea that said mandate protected him in his possession until after said trial, and refused to consider said mandates. Relator further says that the further hearing of said application was by said judge continued until June 20, 1907, and on said date said judge did appoint a receiver in this cause to take possession of said land and collect the rents and profits thereof (a certified copy of said order is hereto attached as Exhibit E) and your relator alleges that unless this court grants a writ of mandamus to compel said judge to obey said mandates, and desist from disturbing the possession of this relator pending the trial in this cause, said judge will enforce the appointment of said receiver, and dispossess this relator, based on his decision that said mandates do not prohibit him from appointing a receiver and taking possession of said land pending said hearing: Your relator alleges that he has no adequate remedy at law by which he can compel said lower court to obey said mandates; but relator alleges that a receiver has been...
