Hardcastle v. State Ex Rel. Walcott

Opinion by ESTES, C. Parties will be referred to as they appear in the ’rial court, inverse to their order here. Plaintiff had judgment against defendant on a promissory note, an asset of the defunct Bank of Commerce of Okmulgee, liquidated by plaintiff, from which judgment defendant appeals. The only issue raised by defendant Hardcastle was non assumpsit on certain alleged facts. By an opinion rendered herein, the cause was reversed and remanded. For rehearing, among other grounds, .plaintiff presents a duly certified deed of trust, duly executed and filed for record by defendant, conveying certain property of defendant to a trustee for the benefit of defendant’s creditors several months prior to the decision of this court herein. Therein, defendant identifies the obligation sued upon herein as being involved in this appeal and solemnly acknowledges the same as a valid and subsisting obligation, and makes certain provisions for paying same out of the proceeds of the property sold and conveyed in trust. Thus, the question of defendant’s liability on such note has become moot. Ordinarily this court would not take further cognizance of this ease, since no practical result can follow other than the awarding of the costs on this appeal. Pitts v. Peoples National Bank of Checotah, 72 Okla. 65, 178 Pac. 257. Where it is made to appear by proper showing in this court that the controversy involved in a proceeding in error has been settled between the parties, the appeal will be dismissed. Quinn et al. v. State ex rel. Cole, 43 Okla. 198, 141 Pac. 1160. 2, 3. It does not appear in plaintiff’s petition for rehearing when plaintiff discovered the fact that defendant had acknowledged such indebtedness. If same had been made to appear prior to the decision of this court, the appeal had been promptly dismissed. The question recurs whether this court will withdraw its opinion herein in order to dismiss the ease. Plaintiff insists on affirmance of the judgment of the trial court — not dismissal of defendant’s appeal. Clearly plaintiff desires affirmance in order to -take advantage of the trust deed provision giving plaintiff preference of payment over other creditors if the judgment be affirmed, but providing otherwise if the judgment be reversed. Defendant could not now be heard to insist or desire otnerwise than an affirmance. Where on appeal there is no contest as to law or facts, both parties desiring affirmance, the appeal will be dismissed. Davies et al. v. Brooks et al., 212 Ill. 566, 72 N. E. 724. Under this state of case, we think the opinion herein reversing the judgment should be 'withdrawn, under the plenary powers of this court thereunto, because neither party should be permitted to speculate upon the judgment of the court with reference to the rights of others, that is, the other creditors of defendant referred to in the trust deed, whose rights of priority by the terms of such deed depend upon the affirmance or reversal of this cause, they not being before the court. Let the petition for rehearing be sustained, the opinion herein rendered withdrawn, and this appeal dismissed. By the Court: It is so ordered. Note. — See under (1) 4 C. J. p. 575, §2383. (2) 4 C. J. p. 575, §2383; p. 579, §2387.