In this proceeding plaintiff in error seeks to reverse the judgment of the trial court by which it was determined that the right, title, and interest of the defendants in error was superior to the right, title, and interest claimed by him, and to have reversed the judgment of the trial court wherein it was determined that the rents and profits from the premises during the time defendants *Page 288 in error had been excluded from their possession and control thereof offset the value of the permanent improvements made thereon, and denying to plaintiff in error any judgment or relief by reason of his claim as an occupying claimant. It is also sought in this proceeding to reverse the action of the trial court in rendering the judgment upon the plea of intervention of Holley Means, fixing their fee and establishing the same as a lien against the interest in said land purchased and owned by the defendant Fred Browne.
In the consideration and determination of this proceeding this court is met at the outset by a motion on behalf of defendants in error to dismiss this appeal for the reason that the same is duplicitous, in this, that it seeks by one petition in error and one case-made to have reviewed in this court a judgment in ejectment, a judgment under the Occupying Claimants Act and a judgment upon the plea of intervention in favor of the attorneys. Holley Means. Upon the presentation of this case on oral argument the request was made by plaintiff in error that if this court should conclude that the motion to dismiss was properly before the court for determination plaintiff in error should be granted 15 days in which to file a response to said motion to dismiss and an answer brief thereon. Thereafter on November 2, 1923, it was ordered by this court that plaintiff in error file a response to said motion to dismiss and an answer brief thereon on or before November 20, 1923. This has been done and the question raised by the motion to dismiss and the response thereto are now properly before this court for determination.
It is apparent from the foregoing statement that plaintiff in error by this proceeding presents to this court and seeks relief from two inconsistent judgments, viz., a judgment in ejectment and a judgment under the Occupying Claimants Act. That the proceedings leading to these two judgments cannot be presented in this court by one petition in error and one case-made has been definitely settled and determined in this jurisdiction by the case of Harper v. Stumpff, 84 Okla. 187,203 P. 194, which has been followed by this court in Callahan v. Nida, 86 Okla. 279, 207 P. 967, and approved in Stumpff v. Harper, 90 Okla. 195, 214 P. 709.
In the case of Harper v. Stumpff, supra, the judgment in ejectment was rendered March 17, 1920, and the judgment under the Occupying Claimants Act was rendered March 18, 1920. In that case, as in the instant case, the answer set up the claim for improvements and taxes, but it was recognized as raising an issue not germane to the action of ejectment and was therefor submitted to a different jury and a separate verdict returned.
Both judgments were brought to this court by one petition in error and case-made, and Justice Miller, in delivering the opinion of the court dismissing the appeal, used this language:
"The plaintiffs in error did not have a right to try the issues under the Occupying Claimants Act until the judgment against them in ejectment had become final. Their cause of action did not accrue until the ejectment judgment became final. That judgment was a necessaary part of their cause of action. They had a right to treat the judgment as final and then try the issues raised under the Occupying Claimants Act, or they had a right to appeal from the judgment in ejectment, but they could not do both The right to recover under the Occupying Claimants Act is inconsistent with a claim of ownership and right of possession.
"This appeal cannot be maintained, for it seeks to reverse two judgments in one appeal. By this appeal, the plaintiffs in error are asking this court to reverse the first judgment and decree them to be the owners of the land and entitled to hold possession. By this same appeal, they are asking this court to reverse the second judgment and hold they are entitled to recover from the defendant in error under the Occupying Claimants Act for the value of the improvements placed on the land which they are asking this court to say belongs to them. These two judgments were not consolidated, and in their nature could not be consolidated. This is not like where two cases have been consolidated in the trial court and have been appealed under one petition in error and one case-made.
"The plaintiffs in error had the election of remedies; to either defer the trial of their right to recover under the Occupying Claimants Act and appeal to this court from the first judgment, or waive their right of appeal from that judgment, treat it as final, and then try the issues under the Occupying Claimants Act. If on the last trial, they felt themselves aggrieved, they could appeal from that judgment, but they can not pursue both remedies and appeal from both judgments at the same time and in one appeal."
This decision is controlling in the instant case. Here the plaintiff in error is seeking to reverse the trial court in its judgment in the ejectment action upon the ground that the court erred in decreeing title in defendants in error as heirs of Audreth Folsom, deceased. At the same time plaintiff *Page 289 in error is seeking to have the judgment of the trial court rendered upon his claim for improvements under the Occupying Claimants Act reversed because of error alleged to exist in said proceedings. In addition to these two inconsistent judgments, plaintiff in error also seeks to have reviewed a third judgment of that court fixing the fee and establishing the lien of Holley Means, attorneys for defendants in error.
For the reasons stated, and in conformity with the rule announced in Harper v. Stumpff, supra, the motion of defendants in error to dismiss the appeal herein should be, and the same is hereby, in all things sustained.
By the Court: It is so ordered.