State Ex Rel. Goldsborough v. Huston , 26 Okla. 861 ( 1910 )

In Goldsborough et al. v. Hewitt, 23 Okla. 66, 99 P. 907, this court held the deed from William H. Goldsborough to Robert Hewitt, dated February 18, 1897, to the homestead in controversy, without consideration and void, that Goldsborough's divorced wife, Louisa Caldwell, had no interest therein, and reversed and remanded the cause.

On the mandate going down, on motion of Goldsborough, the trial court spread the same of record, but refused to proceed further, it appearing that pending said cause in this court and between the date of its submission and decision, to wit, August 13, 1908, the defendant, Robert Hewitt, had died. This is an original proceeding in mandamus in this court to compel the trial court, among other things, to revive the cause against the heirs of Robert Hewitt, and put plaintiff in possession of the property, which on motion the trial court refused to do. For the reason that plaintiff had an adequate remedy in this court, which he has subsequently pursued, as indicated inGoldsborough v. Hewitt, infra, 110 P. 906, the peremptory writ will not run.

All the Justices concur.