# Wheeler v. City of Muskogee > Supreme Court of Oklahoma · January 19, 1915 · 51 Okla. 48 URL: https://www.frixlaw.com/law-library/cases/3831887 ## Case - **Full name:** Wheeler v. City of Muskogee - **Court:** Supreme Court of Oklahoma - **Decided:** January 19, 1915 - **Citations:** 51 Okla. 48; 151 P. 635; 1915 OK 36; 1915 Okla. LEXIS 930 - **Precedential status:** Published - **Opinion:** Addendum by Collier - **Judges:** Rittenhouse, Collier - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3831887 ## Opinion text *67 ON PETITION FOR REHEARING. Opinion by COLLIER, C. Many grounds are set up by the counsel presenting the motion for rehearing and praying that the opinion filed herein January 19, 1915, be vacated and set aside; that a rehearing be granted, and the cause reversed. Many of the grounds urged for rehearing, we think, are unnecessary to consider, and we review only the motion on the grounds germane thereto. It is insisted that the instant case is in conflict with the holding of this court in Morrow v. Barber Asphalt Pav. Co. et al., 27 Okla. 247 , 111 Pac. 198 ; Davis v. Board of County Commissioners, 45 Okla. 284 , 137 Pac. 114 , and Z. J. Fort Produce Co. v. Southwestern Grain & Produce Co., 26 Okla. 13 , 108 Pac. 386 , and that the finding of the trial court is not supported by the evidence. We most fully agree with the views expressed by the distinguished gentlemen for the motion: “That to hand down opinions in direct conflict with prior decisions, without overruling them, leaves trial courts and the bar in a state of uncertainty as to the law.” But, while thus most cordially agreeing with these gentlemen, we trust we will be pardoned for insisting, as we feel warranted under the facts in doing, that these learned attorneys are in error, as neither one of said cases is at all in conflict with the opinion in the instant case. In Morrow v. Barber Asphalt Pav. Co., supra, after a most careful examination of the opinion therein, wé fail to see the conflict of opinions as averred. In said case the rule is announced that the 60 days’ limitation in which to set aside a special assessment made against the lots abutting upon a street to pay the cost of grading does not apply to bar a lot owner of an action to enjoin collection of such *68 assessment, where the proceedings upon which it is based are void. In the instant case the weight of the evidence clearly shows that the proceedings complained of are not void, but are in accord with the law. In Z. T. Fort Produce Co. v. Southwestern Grain & Produce Co., supra, it is held that the amendment upheld did not substantially change the claim; that the amendment simply amplified the. original petition. In the instant case the proposed amendment, which was denied, states new causes of action against which the bar of the statute had run. In the case of Davis v. Board of County Commissioners, supra, the conflict averred between it and the instant case can only exist in imagination. The complaint of movants that the contract and assessment based thereon were void, and that the contract was not let to the lowest bidder, we beg to say, is without force, as an examination discloses that the finding of the trial court is supported by the weight of the evidence. Applying to the evidence the rule declared in Schock v. Fish, 45. Okla. 12, 144 Pac. 584 , invoked by moyants, which rule has been substantially invoked in the following cases: Success Realty Co. v. Trowbridge, 50 Okla. 402 , 150 Pac. 898 ; Wimberly, Trustee, v. Winstock et al., 46 Pac. 645 , 149 Pac. 238 ; Gillam v. Richart, 50 Okla. 144 , 150 Pac. 1087 ; Hatcher v. Kinkaid, 48 Okla. 163 , 150 Pac. 182—we, after a careful review of the' same, cannot say that the judgment of the trial court is clearly against the weight of the evidence. Movants have failed to comply with rule 9 of this court ( 38 Okla. vi , 137 Pac. ix ), i. e.: “To show either that some question decisive of the case and duly submitted by counsel has been overlooked by the *69 court, or that the decision is in conflict with an express statute or controlling decision to which the attention .of the court was not called, either in the brief or oral argument, or which has been overlooked by the court.” It follows that the oral argument requested should be refused, and a rehearing in this case should be denied. RITTENHOUSE, C., not participating. COLLIER, C., sitting with Division No. 3. By the Court: It is so ordered. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3831887. Public record. Not legal advice.