Opinion
No. 5096
Opinion Filed May 5, 1914.
APPEAL AND ERROR — Settlement of Controversy — Dismissal. Where, prior to the determination of a proceeding in error in this court, it is made to appear by defendant in error that the controversy has been settled and determined, and the showing thereof which has been duly served is undenied by plaintiff in error, the proceeding will be dismissed.
(Syllabus by the Court.)
Error from District Court, Muskogee County; R. P. deGraffenreid, Judge.
Action by Jennie Yarbrough against Josie C. Spaulding and T. M. Leslie. Judgment for plaintiff, and defendants bring error. Dismissed.
Bailey, Wyand Moon, for plaintiffs in error.
George C. Beidleman and Merwine Newhouse, for defendant in error.
This case was filed in this court on May 8, 1913, and presents error from the district court of Muskogee county. Since the plaintiffs in error filed their appeal in this court the controversies involved appear to have been fully settled, as is shown by a certified copy of deed to the land involved properly executed, by Jennie L. Yarbrough (joined by W. L. Yarbrough), plaintiff below, who asserted claims to said land the said deed being to Josie C. Spaulding as grantee. This land was the sole matter at issue. The motion to dismiss this appeal made by the attorneys of defendant in error sets forth the execution of said deed on the 24th day of December, 1913, and accompanying affidavit of George C. Beidleman, one of the attorneys for defendant in error, alleges that he served the motion to dismiss this appeal, to which this affidavit is attached, on the plaintiffs in error in said action on the 7th day of April, 1914, by depositing in the postoffice at Okmulgee, Oklahoma, a true copy of said motion addressed to Bailey Wyand, attorneys for plaintiffs in error, addressed to them at Muskogee, Oklahoma, with postage prepaid. This affidavit and motion to dismiss the appeal was filed in this court on April 8, 1914. Up to this time there has been made no answer or counter showing. The controversy having thus been determined, the rule announced by this court in Smith v. Boatman, 29 Okla. 818, 120 P. 599, is applicable.
The motion to dismiss the appeal is sustained.
All the Justices concur.