This is a post conviction proceeding in which it has now been stipulated that the contentions made by David Rex Curry, 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 have 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 Lilly v. Gladden, supra, is controlling. The case 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 the custody of the defendant. Our mandate will issue forthwith.