
    Submitted January 27,
    reversed February 3, 1960
    SEIBEL v. GLADDEN
    348 P. 2d 1120
    Merlin Estep, Salem, for the respondent.
    Robert Y. Thornton, Attorney General of Oregon, and Robert G. Danielson, Assistant Attorney General, Salem, for the appellant.
   PER CURIAM.

This proceeding was initiated in Marion county under the Oregon Post Conviction Hearing Act by the petition of plaintiff, Bichard Dean Seibel, who sought release from the penitentiary on the ground that he was unlawfully confined. The defendant warden demurred to the petition on the ground that it failed to state facts sufficient to constitute grounds for relief. The trial court overruled the demurrer and ordered plaintiff discharged from the penitentiary. The defendant appealed.

It has been stipulated that the contentions made by the plaintiff in this proceeding are identical with the contentions made by the plaintiff in the case of Lilly v. Gladden, 220 Or 84, 348 P2d 1, and that our decision in that case is controlling here. The parties waived the filing of briefs and oral argument and request the court to determine this case on the record.

We have examined the record and agree that this case is controlled by Lilly v. Gladden, supra. The cause is remanded with directions to vacate the judgment discharging plaintiff, to sustain defendant’s demurrer to plaintiff’s petition and to enter a judgment returning plaintiff to custody of the defendant. It is ordered that our manadate issue forthwith.  