This case is now presented on the petition of plaintiff in error to recall mandate and to vacate order denying application to modify opinion and for reconsideration of the application for modification of the per curiam order attached to the original opinion filed herein. It appears from the record that this case was assigned to Division No. 3, and opinion was handed down, reversing the judgment of the trial court based on the order granting new trial. Petition for rehearing was filed, and under date of September 6, 1924, the opinion was withdrawn, corrected, and refiled and rehearing denied. The opinion of the Commissioner reversed the order of the lower court granting a new trial and remanded the cause to the district court of Mayes county, with directions to render judgment on the verdict of the jury. The correction of the opinion made on September 6, 1924, consisted of a per curiam order as follows:
"Per Curiam. The opinion of the court as rendered by the Commissioner is hereby modified as follows: Judgment of the lower court granting new trial to the defendants in the court below is hereby reversed and set aside and the cause is remanded to the lower court, with instructions that, consistent with the law as announced in this opinion, it shall reconsider and again determine the merits on the motion for new trial filed by defendants in the court below."
This order was filed in the clerk's office on October 7, 1924, and shortly thereafter, to wit, on October 17, 1924, and within the time prescribed by the rule of this court, *Page 45 plaintiff in error filed his application for modification of the opinion as corrected. On November 3, 1924, response to said application was filed by defendant in error and said application and response was referred to Honorable Cham Jones, of Division No. 3 of the Supreme Court Commission, and on November 15, 1924, Commissioner Jones submitted his report recommending that the application of plaintiff in error for modification of said corrected opinion and withdrawal of the per curiam order be granted, which said report of Commissioner Jones appears in the files.
The record further shows that on November 25, 1924, an order was made denying the defendant in error leave to file a second petition for rehearing, and shortly after that time, to wit, on December 8th, the mandate was issued and sent to the district court of Mayes county with a copy of the opinion as corrected being attached thereto.
It is contrary to the well-established rules of this court to issue a mandate and forward same to the court below until all matters properly on file and pending in this court in said case are finally passed on and disposed of and the time allowed by law or the rules of the court within which to file further or additional pleadings has expired, and if a mandate is issued in violation of said rules, same will be deemed to have been issued through inadvertence or mistake and will be recalled upon proper application being made therefor.
It therefore clearly appears that the mandate herein was issued through inadvertence and mistake, for the reason that on December 8th, the date of issuance of same, the application of plaintiff in error to modify the corrected opinion was still pending and the report on same by Commissioner Jones had not been acted upon by the court. We are therefore of the opinion that the application of plaintiff in error to recall mandate should be granted, and it is ordered that the clerk of this court forthwith recall the mandate from the district court of Mayes county. We are further of the opinion, from a careful examination of the record, that the order of the court made on December 16, 1924, denying the application of plaintiff in error to modify the opinion should be vacated and set aside, and it is so ordered, and upon consideration of plaintiff in error's application for modification of the per curiam order and response of defendant in error thereto, we are of the opinion that the report of Commissioner Jones should be approved and adopted, and that the per curiam order modifying said original opinion in this case should be withdrawn and the opinion should be refiled as originally handed down in this case, reversing the cause and directing the district court of Mayes county to render judgment on the verdict of the jury, and it is so ordered.
BRANSON, V.C.J., and HARRISON, LESTER, PHELPS, and RILEY, JJ., concur. NICHOLSON, C.J., and MASON and CLARK, JJ., absent and not participating.