State ex rel. Crickett v. Pitchford

• Decision Date: 12 February 1918
• Docket Number: Case Number: 9358
• Citation: 1918 OK 115,171 P. 448,68 Okla. 81
• Parties: STATE ex rel. CRICKETT et al. v. PITCHFORD, District Judge.
• Court: Oklahoma Supreme Court

1918 OK 115

171 P. 448

68 Okla. 81

STATE ex rel. CRICKETT et al. v. PITCHFORD, District Judge.

Case Number: 9358

Supreme Court of Oklahoma

Decided: February 12, 1918

Syllabus

¶0 1. Dismissal -- Voluntary "Dismissal" -- Payment of Costs.

Under section 5126, Rev. Laws 1910, the plaintiff has the right, upon payment of costs, to dismiss his action without an order of court any time before the trial has commenced. But the filing of the praecipe without paying the costs does not constitute a dismissal of the action.

2: Mandamus -- Entry of Judgment.

After the mandate of this court was received and spread of record in the trial court. plaintiff filed a praecipe for dismissal of the case, but did not pay the costs. The court refused to render judgment in obedience to the mandate, treating the case as automatically dismissed upon filing of the praecipe. Held. the action not having been dismissed by filing the praecipe without paying the costs, mandamus will lie to compel the trial court to enter judgment in obedience to the mandate.

Application for mandamus by the State of Oklahoma, on relation of Charles Crickett and others, against John H. Pitchford, Judge of the District Court. Writ issued.

J. H. Jarman and S. A. Horton, for plaintiffs.

W. L. Curtis, for defendant.

OWEN, J.

¶1 This is an original action instituted by plaintiffs for mandamus to compel the defendant, judge of the district court of Sequoyah county, to enter judgment in accordance with the mandate issued by this court in the case of Crickett et al. v. Hardin, 60 Okla. 57, 159 P. 275.

¶2 It appears from the petition and response that judgment was rendered by this court June 27, 1916, reversing the case of Crickett et al. v. Hardin, with direction to the trial court to render judgment in conformity to the views therein expressed. The mandate of this court was received and filed by the clerk of the trial court, and spread of record by order of the court.

¶3 On March 27, 1917, after the mandate had been spread of record, Charles Crickett, plaintiff in that case, filed a praecipe for dismissal of the cause in the following language:

"To the Court Clerk of Sequoyah County, Oklahoma: You will please dismiss the above-entitled cause with prejudice at cost of the plaintiff. [Signed] Charles Crickett, Plaintiff."

¶4 On April 26, 1917, a motion was filed by Charles Crickett to withdraw this praecipe for dismissal. On May 13, 1917, Hardin, the defendant in error, filed a motion for judgment in his favor in keeping with the opinion and mandate of this court, as he construed it. On May 21, 1917, plaintiffs in error filed a motion for judgment in their favor in keeping with the opinion and mandate, as construed by them. On July 9, 1917, plaintiff in error Crickett filed a motion for leave to amend his original petition to include certain lands alleged to have been inadvertently omitted. The cause coming on to be heard upon these several motions, the court held that the cause had been automatically dismissed on March 27, 1917, upon filing of the praecipe for that purpose by Charles Criekett, and entered an order denying the several motions, including the motion to withdraw the praecipe for dismissal and the motions to enter judgment in accordance with the mandate.

¶5 In treating the filing of the praecipe as a dismissal of the case, the court was in error. It appears the costs of the action were not paid at the time the praecipe was filed. Section 5126, Rev. Laws 1910, permits a plaintiff at any time before the trial is commenced, on payment of the costs, to dismiss his action without an order of the court. In the case of Harjo v. Black, 49 Okla. 566, 153 P. 1137, it was said:

"But the filing of the stipulation by plaintiff is not all; for the statute requires that the costs be paid. * * * It cannot be said, therefore, that the mere filing of the stipulation automatically dismissed the suit. Until the costs were paid, it remained upon the court docket as though the stipulation had not been filed. The court was not divested of jurisdiction over the action until a compliance with the statute."

¶6 To the same effect is the case of Davis v. Mimey, 60 Okla. 244, 159 P. 1112. In this connection counsel for respondent insist that the statute was complied with in this respect on May 17, 1917, when one of the attorneys for Crickett paid the costs in arrears to the clerk in order to secure the issuance of a subpoena. This payment did not work a dismissal, for the reason a motion had been filed by Crickett to withdraw this praecipe, and this payment was made in order to secure the attendance of witnesses in support of this motion. The clerk refused to issue a subpoena until the costs had been paid. This payment was to prevent a dismissal rather than to secure it, as the statute contemplates. That the trial court considered the case dismissed upon filing the praecipe appears from the language of the order as follows:

"It is therefore ordered and adjudged that petition of the plaintiff Charles Crickett to withdraw and set aside the praecipe four dismissal of this action be denied, for the reason that said praecipe had a lawful right to dismiss said action, which he did, when said praecipe for dismissal was filed herein."

¶7 It is urged by counsel for respondent that mandamus will not lie in this action for the reason (1) plaintiff had an adequate remedy at law in appeal from the order of the court; and, (2) in accordance with the views expressed in the opinion reversing the case, applied to the facts, plaintiff was not entitled to any interest in the land. Neither of these positions is tenable. The original action was brought by plaintiffs alleging that Charles Crickett, as the half-brother and sole heir of Mary Gann, was the owner of the land allotted to Mary Gann, deceased. The defendant, Hardin, denied Crickett was the heir of Mary Gann, alleging that Mary Gann was an illegitimate child. The issue was whether she was the legitimate child of Josiah Crickett, father of Charles Crickett; that is, whether the relation between Josiah Crickett and Mary Gann's mother was matrimonial or meretricious. Hardin claimed title through a maternal uncle of Mary Gann. In the opinion, prepared by Commissioner Bleakmore, appears the statement:

"The principal, if not the sole, question involved, for a determination by the trial court, and presented here for review, is the legitimacy of the allottee [Mary Gann.]"

¶8 The lower court found that Josiah Crickett and the mother of Mary Gann, "did assume a cohabital relation, ranging from...