Martin v. Gwinnup

Opinion by ROBERTSON, C.

On March 10, 1909, a judgment was entered in the district court of Muskogee county in favor of Harry G. Gwinnup and James L. Allen, and against J. F. Griffins, James Robinette, W. A. Crosby, T. F. Crosby, F. L. Martin, and C. W. Turner, for the recovery of the possession of certain real estate, and damages for its wrongful detention. A motion for new trial was filed by the defendants and overruled by the court. A demand for a second trial, under the provisions of section 4792, Wilson’s Rev. & Ann. St. 1903, was made by the defendants, and a second trial was granted by the court by virtue of the provisions of said' statute. From this order of the court, granting a second trial, the plaintiffs appealed to this court, the cause being number 1,488, entitled Harry G. Gwinnup et al. v. J. P. Griffins et al., ante, and which appeal was dismissed by this court on May 14, 1912, on account of defect of parties. On De *161 cember 23, 1909, F. L. Martin, the plaintiff in-error, and who was one of the defendants in the cause below, filed his petition to vacate and modify the judgment and order of the court entered on March 10, 1909, on the grounds of newly discovered evidence, etc. The plaintiffs below, defendants in error herein, interposed a demurrer to the petition which was sustained by the court, and Martin, the plaintiff in error, elected to stand on his petition, and refused to plead further, whereupon the court entered an -order dismissing his petition, from which order he brings this appeal. By reason of the dismissal of the appeal in cause number 1,488 on May 14, 1912, a new trial will result in the district court, as originally ordered by the judge thereof; it therefore becomes apparent that the question involved herein has become a moot question, and is now hypothetical, and no good result would be obtained by the further consideration by this court of the issue involved in this appeal.

Such being the case, the cause should be remanded to the district court of Muskogee county, with instructions to dismiss the same.

By the Court: It is so ordered.