St. Louis S. F. R. Co. v. Ladd , 38 Okla. 270 ( 1913 )

From a judgment of the county court of Grady county rendered and entered against it, St. Louis San Francisco R. Co., plaintiff in error, defendant below, brought the case here, and this court reversed and remanded the same for a new trial, and taxed the costs of that appeal to the defendant in error, G. W. Ladd. 33 Okla. 160, 124 P. 461. After a new trial, pursuant to our mandate, from a judgment rendered and entered therein against defendant, plaintiff in error, St. Louis S. F. R. Co., again appeals.

On the 24th day of April, 1913, pending the second appeal, pursuant to pr æcipe duly filed, the clerk of this court issued an execution from this court for the amount of the costs accrued to plaintiff in error by virtue of its first appeal, and the same is outstanding and unsatisfied. Section 5258, Rev. Laws 1910, provides:

"When a judgment or final order shall be reversed on appeal, either in whole or in part, the court reversing the same shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment. The court reversing such judgment or final order shall not issue execution in causes that are removed before them on error, on which they pronounce judgment as aforesaid, but shall send a special mandate to the court below as the case may require, to award execution thereupon; and such court, to which such special mandate is sent, shall proceed in such cases in the same manner as if such judgment or final order had been rendered therein."

The motion to quash the execution is sustained.

Let the same order be entered in cause No. 836, St. L. S.F. R. Co. v. Sparks, Perry Sacra.