Seargeant v. Cullison

TURNER, J.

This is an original application for a writ of prohibition filed in this court on December 31, 1912. The petition substantially states that on November 12,- 1907, Lucinda Sturgeon sued C. Seargeant and others, in the district court of Kingfisher county in ejectment; that on December 7, 1907, defendant answered, in effect, a general denial; that on May 6, 1911, upon the issues thus joined, there was trial to a jury and verdict for defendants, whereupon plaintiff filed a motion for a new trial; that the hearing thereon by agreement of counsel was continued to an adjourned sitting of the court on June 12, 1911, or to such time as might suit the convenience of the court, whereupon there was rendered and entered judgment upon the verdict, at which time plaintiff gave notice that she demanded a second trial as. a matter of right; the hearing of this demand, also by consent, was adjourned to the time stated; that on September 18, 1911, defendant, the trial judge, made and entered an order calling a special term of the district court to convene on October 9, 1911, and ordered publication of notice thereof as required by law; that pursuant thereto said judge convened an alleged term of court in Kingfisher county on the 9th day of October, 1911, and among other things sustained said demand of Lucinda Sturgeon for a second trial as a matter of right, but overruled her motion for a new trial; that on October 3, 1912, said judge made and entered another order for a special term of the district court to convene in said county on October 21, 1912, on which day he convened the same and pursuant thereto set said cause on the calendar for a new trial; that said alleged term of court convened on October 9, 1911, in said county, pursuant to said order, but that the same was not a court, and that said trial judge was without jurisdiction to pass upon said demand, there being no court in session at that time, the order calling for the special term being without authority of law and void; that said alleged court is now.being held; that said judge is without authority of law to try said cause or to place the same upon the calendar for trial for the reason that Lucinda Sturgeon was not and is not entitled to a second trial as a matter of right, but unless prevented will proceed to try the same over the objection of the defendant, this petitioner. The prayer is for the writ prohibiting said judge from trying said cause or making any order therein for want of jurisdiction, and for the further reason that no court is in session in said county at this time.

Entering his appearance, defendant waived the alternative writ and demurrer. But we will not consider plaintiff’s petition for the reason that on the submission, January 21, 1913, plaintiff having filed no brief in answer to that of defendant in support of his demurrer, we in open court allowed five days for that purpose, which later, of our own motion, was extended ten. days, and later 60 days, and counsel notified.

The time now having expired, plaintiff’s petition is dismissed for want of prosecution.

All the Justices concur.