Chambers v. Savage ( 1938 )

This action involves the contest of the will of a deceased Osage Indian which has been duly approved by the Department of Interior. The petition in error with case-made attached was filed in this court July 29, 1936. On July 25, 1937, a motion to remand on the ground of a compromise with the said Sophia West Savage was presented to the court and denied. On October 18, 1937, the plaintiffs in error filed a motion stating that they have proceeded in the district court of Osage county to attempt to enforce the alleged compromise agreement, and as the basis of such action they move this court to suspend the proceedings in this cause until such time as the proceedings in the district court have been determined.

We are of the opinion, and hold, that the cause must be dismissed as the appeal has been abandoned. Buckley v. Kelley,126 Okla. 20, 257 P. 1107. In that case it is held:

"Where a party after his appeal to this court causes an action to be instituted in the United States District Court, involving the same parties and the identical subject matter, the filing of such action in the latter court will be deemed to be an abandonment of the appeal in this court, and on proper motion, the appeal will be dismissed."

We think it entirely inconsistent with an appeal in this court to allege that the parties have compromised and agreed upon a settlement thereof. Either that fact is true or untrue, and only a determination thereof in the trial court will disclose that fact. Such constitutes an abandonment of the appeal in this court.

The appeal is dismissed.

BAYLESS, V. C. J., and RILEY, PHELPS, GIBSON, and HURST, JJ., concur.