Take v. Woodruff, Case Number: 22203
| Decision Date | 12 May 1931 |
| Docket Number | Case Number: 22203 |
| Citation | 150 Okla. 73,300 P. 698,1931 OK 255 |
| Parties | TAKE et al. v. WOODRUFF, Judge. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Mandamus--Writ to Enforce Mandate of Supreme Court.
It is the duty of the district court to enforce the mandate of the Supreme Court issued upon affirmance of the judgment of the district court brought here on appeal, and if the district court fails so to do, mandamus is the proper remedy to cause the enforcement of such mandate, as an appeal would not afford the aggrieved parties the prompt and effective relief to which they are entitled.
2. Same--Construction of Mandate by Lower Court.
If a mandate of the Supreme Court is open to construction, the court below can resort to the opinion of the Supreme Court, and can apply proper rules of construction, but further than that the court below cannot go.
3. Same--Construction of Mandate by Supreme Court.
In construing a mandate, this court must resort to a careful consideration of the opinion on which it is based. In so doing, the true intent thereof must be deduced from a consideration of the entire opinion and no one expression or portion thereof can be considered to the exclusion of other thoughts recited therein.
4. Same--Mandamus Proceeding for Construction of Mandate not to Be Used as Petition for Rehearing.
A proceeding in mandamus in this court for the construction of the mandate of this court in a former case may not be used as a petition for rehearing therein, and the opinion sought to be construed, in this form of action, is final and conclusive.
5. Mandamus--Showing Necessary for Writ of Mandamus.
In a proceeding for writ of mandamus, unless plaintiff shows himself clearly entitled to the relief sought by such writ, the writ will be refused.
6. Appeal and Error--Proceedings in Lower Court After Dismissal by Guardian of Appeal from Order Surcharging Him for Items Shown by Final Account.
Upon dismissal by a former guardian of an appeal to this court from an order surcharging him for items shown by his final account to have been disbursed, the order surcharging becomes final and binding upon him and it is the duty of the district court to cause the same to be enforced by the county court, and for that purpose to direct the proceedings to be remitted to that court, unless the minors have also appealed from the order surcharging the former guardian on the ground of the insufficiency of the order surcharging the former guardian, in which event the district court must withhold any order to the county court until the determination of the appeal by the minors.
7. Same--Scope of Review Where Guardian Appeals from Order Rejecting One or More Items in Account.
Each item in the account of a guardian is a separate claim, and an appeal by the guardian from the judgment rejecting one or more items brings up for review only the ruling on the rejected item.
Original proceeding in Supreme Court for writ of mandamus by William Take, a minor, by A. T. Edmondson, as guardian, and as administrator of estate of Louisa Take, against W. A. Woodruff, District Judge of First Judicial District. Writ denied.
Allen & Jarman, Solus S. Brooks, W. H. Kisner, and W. E. Foltz, for plaintiffs.
Vance & Bliss, for defendant.
¶1 This is an original proceeding in this court in mandamus against the district judge of the First judicial district of the state of Oklahoma for the construction and interpretation of the mandate and opinion in cause No. 19468, Louisa Take and William Take, Minors, by A. T. Edmondson, Guardian, Plaintiffs in Error, v. J. T. Powell, Defendant in Error, 138 Okla. 244, 280 P. 811, and the mandate in cause No. 19466 in this court, dismissed without opinion.
¶2 The proceeding is authorized by the rule announced by this court in St. Louis & S. F. R. Co. v. Hardy, District Judge, 45 Okla. 423, 146 P. 38, in which it was held:
"It is the province of this court to construe its own mandate in connection with its opinion, and, if it finds that the trial court has misconstrued the same, the mistake may be corrected by writ of mandamus from this court."
¶3 The rule was followed in Harris, Receiver, et al. v. Chambers, District Judge, et al., 121 Okla. 75, 247 P. 695. In that case this court said:
¶4 Under that rule we must consider the entire opinion to determine whether or not the relief prayed for should be granted, and we may not confine ourselves to any one expression or portion thereof to the exclusion of other thoughts recited therein.
¶5 The syllabus in the opinion of this court in cause No. 19468, supra, gives us nothing of advantage. The first paragraph thereof recites that the proceeding was an appeal by the guardian from a judgment surcharging the former guardian. J. T. Powell, in certain amounts for which he claimed credit in his final report as guardian. It thereafter recites that "the petition in error prays the judgment be reversed, set aside, and held for naught and that this court render such judgment herein for the plaintiff in error as should have been rendered by the trial court." The cause was reversed and remanded for new trial for the reason that the stenographic notes of the reporter who took the evidence had been damaged by fire and that much of the evidence introduced in the trial court was not transcribed in the record presented to this court, and that by reason thereof it was impossible for this court to review the record in the cause and reach a conclusion as to what judgment should have been rendered in the trial court.
¶6 An examination of that opinion discloses nothing to indicate other than that the appeal therein determined was from an order surcharging a former guardian in certain sums for which he claimed credit in his final report as such guardian and from which judgment the present guardian appealed. The natural inference created from reading the opinion is that the present guardian appealed from the order by reason of the insufficiency of the sum surcharged. The appeal in cause No. 19466 by the former guardian was from an order surcharging him on four items aggregating $ 4,013.39. It was dismissed by him and no opinion was promulgated therein. The mandate in that case directed the trial court to carry into...
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