Justice, with whom SUMMERS, Justice, joins, dissenting to denial of rehearing.
In his petition for rehearing the claimant argues that the September 23, 1985, vacation of the September 16, 1985, order was not ex parte as this Court’s opinion states, but that in fact attorneys for both parties were present and agreed to the vacation. Included in the petition for rehearing is an affidavit from Paul McGivern, Jr., attorney for respondents, stating that he was present on September 23, 1985, along with attorney for claimant when the vacation order was adopted, and “that pending the outcome of Petitioners Motion for New Trial, both parties were aware of and agreed to said vacation order.” An examination of the record does not reveal whether the September 23, 1985, order was ex parte. As both parties agree, contrary to our opinion, that the order was not ex parte, this case needs to be decided upon other grounds.
On the timely vacation of the September 16, 1985, order on September 23, 1985, by agreement of the parties, the claim stands as if no decision had ever been made. William A. Smith Construction Co. v. Price, 178 Okl. 423, 63 P.2d 108, 111 (1936), Adams v. City of Anadarko, 202 Okl. 72, 210 P.2d 151, 152 (1949). The order arising from the October 7, 1985, hearing was sent October 22, 1985, and timely appealed to this Court on October 31, 1985. Dismissal of this appeal on the erroneous sua sponte fact assumption that the September 23, 1985, hearing was ex parte should be reconsidered by this Court. I would grant rehearing.