Phillips v. Oliver

• Decision Date: 14 December 1915
• Docket Number: 7771.
• Citation: 155 P. 586,53 Okla. 168,1915 OK 1049
• Parties: PHILLIPS ET AL. v. OLIVER ET AL.
• Court: Oklahoma Supreme Court

155 P. 586

53 Okla. 168, 1915 OK 1049

PHILLIPS ET AL. v. OLIVER ET AL.

No. 7771.

Supreme Court of Oklahoma

December 14, 1915

Rehearing Denied Feb. 29, 1916.

Syllabus by the Court.

Under the second subdivision of section 4436, St. 1893 (section 5236, Rev. Laws 1910), this court has jurisdiction to review errors predicated upon an order that "grants or refuses a new trial," although it does not appear that any judgment has been entered in the case; but, where neither a verdict of a jury nor any findings of fact or conclusions of law upon which a judgment may be predicated is shown by the case-made, and this court cannot ascertain therefrom the result of the trial against which the motion for new trial was directed, so as to determine whether the errors assigned were harmful, the petition in error will be dismissed.

Error from District Court, Atoka County; J. H. Linebaugh, Judge.

Action by Naoma P. Phillips and another against W. D. Oliver and others. Judgment for defendants, and plaintiffs bring error. Dismissed.

R. M Rainey and J. G. Ralls, both of Atoka, for plaintiffs in error.

J. M Humphreys, of Atoka, J. T. Dickerson, of Edmond, and Gray & McVay, of Oklahoma City, for defendants in error.

THACKER J.

The plaintiffs commenced this action to perpetually enjoin the defendants and each of them, and their servants and employés from going upon a certain tract of land in Atoka County containing 572.85 acres, more or less, and from drawing any casing out of wells on said land, and from removing any casing from said land that had been drawn from any wells thereon, and from tearing down or destroying any fencing upon or around said land, also for a temporary injunction in the meantime, which was granted.

On April 26, 1914, upon a hearing on defendants' said motion, said temporary injunction was unconditionally "so modified as to eliminate therefrom all the fixtures and personal property, except the outside casing now in said wells and described as an eight-inch casing, and so as to permit the defendants to go upon the premises and remove therefrom all said property, except said outside eight-inch casing, and to pull all of said casing from said well, except said outside eight-inch casing," also so as to permit the defendants to "pull and remove from the premises said outside eight-inch cases" upon the condition of the giving and approval of a bond, conditioned and otherwise as required by the order, in the sum of $750, which bond was to supersede the temporary injunction, and which bond was given and on May 4, 1914, approved. On December 21, 1914, the defendants filed their answer, consisting of a general and a special denial; and the case-made recites, in effect, that on February 10, 1915, the case came regularly on for trial to the court without a jury upon a hearing to dissolve the injunction, following which recital appears the evidence...