Opinion
No. 43,093
Opinion filed March 2, 1963.
SYLLABUS BY THE COURT
TRIAL — Filing Motions After Decision and Appeal — Separate Actions Necessary. Where the trial court has completed the case and issued a final decision upon the issues raised, which is later appealed to this court; but the appellants continue to file motions raising new issues which involve parties not present in the case and where the court finally decides these new issues and appellants then file a second appeal, it is held that the court should not have decided the new issues but should have demanded that the movants begin a new action.
Appeal from Graham district court; C.E. BIRNEY, judge. Opinion filed March 2, 1963. Reversed with directions.
J. Eugene Balloun, of Great Bend, argued the cause and Oscar Ostrum, of Russell, was with him on the briefs for the appellants.
Alex. M. Fromme, of Hoxie, argued the cause and Joseph W. Fromme, of Hoxie, was with him on the briefs for the appellees.
The opinion of the court was delivered by
This is really a second appeal in the case of In re Estate of Goff, No. 42,894, this day decided ante p. 17, 379 P.2d 225. Both appellants and appellees have raised questions concerning the propriety of the trial court proceeding in this case but the appellants persisted in pursuing it further. That case is readily available and we need not elaborate on the issues therein.
The decision in case No. 42,894 was actually announced in the decision of the trial court as of July 31, 1961. The executor, after filing a motion for new trial upon that order, began to file motions in which the court was questioned about the interest of U.S. Goff and Mary C. Goff to the oil and mineral rights in the "Parks Place." It seems to this court that the executors were attempting to raise new issues and furthermore, Mary C. Goff individually has never been a party to the present action. It will be noticed that the court dealt with interests belonging to Mary C. Goff individually.
We are firmly convinced that the matter could have been dealt with more satisfactorily if a new action had been begun and the proper parties had been joined. Therefore, we are reversing the decisions of March 2 and of March 7, 1962 — which are the orders appealed from in this action — with directions to dismiss the proceedings. We do not mean to hold that such decisions were wrong in law nor do we necessarily approve of the holding.
The parties should file a separate action if they desire to pursue the matter further.
PARKER, C.J., not participating.