Stewart v. Stephens

• Decision Date: 12 November 1952
• Docket Number: No. 35370,35370
• Citation: 207 Okla. 403,250 P.2d 28
• Parties: STEWART et al. v. STEPHENS et al.
• Court: Oklahoma Supreme Court

Page 28

250 P.2d 28

207 Okla. 403

STEWART et al. v. STEPHENS et al.

No. 35370.

Supreme Court of Oklahoma.

Nov. 12, 1952.

Syllabus by the Court.

Where, from an examination of the motion to dismiss, the record and the response to said motion to dismiss, it appears that there is no judicial controversy that has not heretofore been determined an appeal will be dismissed.

Barns McCain, Tulsa, for plaintiffs in error.

Harold S. McArthur and Joe Francis, Tulsa, for defendants in error.

DAVISON, Justice.

This is an action for injunction brought by Eddie Stephens et al. against A. B. Stewart et al., involving a controversy over a strip of land. The parties are adjoining landowners. A motion to dismiss has been filed for the reason that all of the issues presented by this appeal have heretofore been determined by this court in Stewart v. Stephens, 196 Okl. 527, 166 P.2d 430 and Youngblood v. Stephens, 201 Okl. 301, 205 P.2d 279.

The motion to dismiss must be sustained. All three appeals involve the right to possession of a three foot strip of land in Block 7, Berryhart Addition to the City of Tulsa, Oklahoma, and also involve the same issues and the same disputed questions of fact adjudicated by the former cases.

We have held that where on an examination of a motion to dismiss, the record and the response to the motion to dismiss it is determined that no issues not heretofore decided are presented, the appeal will be dismissed. Haffner v. Commerce Trust Co., 179 Okl. 235, 65 P.2d 440; Wetumka Ice Corporation v. Williams, 163 Okl. 169, 21 P.2d 724; Releford v. State, 45 Okl. 433, 146 P. 27. Such is the situation in the case now under consideration.

Appeal dismissed.

HALLEY, V. C. J., and WELCH, GIBSON, JOHNSON, O'NEAL, and BINGAMAN, JJ., concur.