Sullivant v. Turner
Sullivant v. Turner
Opinion of the Court
Causes Nos. 8247 and 8233 in this court have been consolidated. The two appeals, which were taken by filing separate petitions in error and case-mades, are from the sam^ judgment; neither plaintiffs nor ¡defendants being satisfied therewith.'
The judgment was for $171.25, and was recovered in a conspiracy action by M. Turner and M. A. Turner as plaintiffs, against Jess Sullivant and R. C. Berry, defendants, who filed a motion for a new trial. The plaintiffs filed a written confession of defendants’ motion for a new trial in which they agreed that the judgment rendered should be sqt aside and a new trial granted. Notwithstanding this fact, the court overruled the motion for a new trial. Plaintiffs also filed a motion for a new trial, which was overruled, and. as above stated, separate appeals were filed in this court.
Counsel for plaintiffs in error in cause No. 8247 have filed a brief supporting their assignments of error, which brief cites num'erous authorities to sustain their contq'ntion that there was prejudicial error committed by the trial court against the 'defendants, Sullivant and Berry. Defendants in error in cause No. 8247, plaintiffs, in error in cause No. 8233 have not filed any brief in answer thereto, and in support of the judgment of the trial count, doubtless for the reason that they confessed defendants’ motion for a new trial. In this situation we think the rule so often stated by this court, that, where no brief is filed in behalf of the defendants in error in answer to the assignments of error and brief of the plaintiff in error, this court is not required to search the record to find some thdory upon which the judgment of the court b.elow may be sustained, is applicable, and," since the brief filed in behali of Sullivant and Berry appears reasonably to sustain a sufficient number of their assignments of error, we have decided to reverse the judgment in accordance with the prayer in the petition of the plaintiffs in error in cause No. 8247. Messer & Westbrook v. White Sewing Machine Co., 48 Okla. 561, 149 Pac. 1097.
The judgment is therefore reversed and l’emanded, with directions to the trial court to grant a new trial.
Reference
- Full Case Name
- SULLIVANT Et Al. v. TURNER, Et Al.; TURNER Et Al. v. SULLIVANT Et Al.
- Status
- Published
- Syllabus
- (Syllabus.) Appeal and) Error — Grant of New Trial — Confession by Defendant in Error. Where plaintiff: in error has completed his record and filed it in the Supreme Court and has served and filed his brief in compliance with the rul^s of this court, and the defendant in error has not filed a brief in answer thereto or in support of the judgment of the trial court, but on the contrary filed in the trial court his written confession of the plaintiff in .error’s motion for a new trial, and where the brief filed by the plaintiff in error appears reasonably to sustain the assignments of error, the court may reverse the judgment and order a new trial.