Sherrill v. Sovereign Camp W. O. W.

• Decision Date: 25 October 1938
• Docket Number: Case Number: 28385
• Citation: 86 P.2d 295,1938 OK 549,184 Okla. 204
• Parties: SHERRILL, Adm'x, et al. v. SOVEREIGN CAMP W. O. W.
• Court: Oklahoma Supreme Court

1938 OK 549

86 P.2d 295

184 Okla. 204

SHERRILL, Adm'x, et al. v. SOVEREIGN CAMP W. O. W.

Case Number: 28385

Supreme Court of Oklahoma

Decided: October 25, 1938

Syllabus

¶0 1. APPEAL AND ERROR--Nature of Mandate--Opinion Controlling Over Conflicting Mandate.

The mandate is but the formal advice and order of the Supreme Court whereby its judgment and opinion in any case is communicated to the lower court. If there is a conflict in the opinion and the mandate, the opinion is controlling.

2. SAME--Right to New Trial Where Case Simply "Reversed" for Insufficiency of Evidence.

Where a case on appeal is simply "reversed" without directions, because of the insufficiency of the evidence, the trial court should grant a new trial.

Appeal from District Court, Garvin County; W. G. Long, Judge,

Action by Vermelle Sherrill, administratrix of the estate of Lula J. Smith, et al. against Sovereign Camp, Woodmen of the World. From judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

R. E. Bowling, for plaintiffs in error.

J. B. Moore, for defendant in error.

RILEY, J.

¶1 This is the second time this case has been before this court. The opinion in the former case, Sovereign Camp of the Woodmen of the World v. Lula J. Smith, 176 Okla. 545, 56 P.2d 408, contains a statement of the facts.

¶2 The issues on the former appeal were stated in the brief of the defendant association as follows:

"1. The plaintiff, not having furnished evidence from an eyewitness to the accidental shooting which was alleged to have caused the death of the insured, cannot recover.

"2. The beneficiary, having accepted the check which was tendered and accepted in full payment of all benefits due or arising under the certificate and in full payment of all demands against the plaintiff in error is estopped to deny full payment and satisfaction."

¶3 After holding the eyewitness clause valid and construing the same, the court held that "* * * there was no evidence sustaining plaintiff's theory of the case, that is, there were witnesses whose evidence preponderates in favor of an accidental shooting. * * * In view of our conclusion we deem it unnecessary to pass on the question of whether or not the plaintiff was estopped from asserting her claim to the double indemnity provided for in the certificate. * * *"

¶4 After the mandate was received, the defendant filed a motion to spread the mandate of record; that the court render judgment for defendant or dismiss the cause with prejudice for the reason that the opinion of the Supreme Court shows, "* * * there is no evidence supporting the petition and no possibility of the plaintiff producing any evidence which entitles her to a judgment. * * *"

¶5 The court sustained defendant's motion and rendered judgment for the defendant, from which plaintiff appeals.

¶6 In the former appeal the court ended its opinion by saying, "For the reasons given, the cause should be reversed, and it is so ordered."

¶7 The mandate issued in the case contained this paragraph:

"Now, therefore, you are hereby commanded to cause such reversal to show of record in your court and to issue such process and take such other and further action as may be in accord with right and justice and said opinion."

¶8 Plaintiff argues in her brief that "* * * the trial court took an erroneous view of the situation and followed the opinion instead of the mandate of the court, and therefore followed the wrong theory of law."

¶9 This court has held that a mandate is but the formal advice and order of the Supreme Court to the trial court (Schneider v. Decker, 144 Okla. 213, 291 P. 80) ; and that the mandate is the official mode of communicating the judgment of the appellate court to the lower court (Egbert v. St. L. & S. F. Ry. Co., 50 Okla. 623, 151 P. 228).

¶10 Actually the mandate is prepared in a printed form and the clerk inserts in the proper blank spaces the information peculiar to the particular case under review. In the paragraph above quoted from the mandate in the instant case "reversal" is the only word inserted by the clerk, the remainder of the paragraph being printed and used in all similar cases. In other words, this court does not prepare a separate mandate in each case. In view of the above facts and the cases above cited, we are unable to agree with plaintiff's contention that the court should have followed the...