Opinion
Nos. 8247, 8233
Opinion Filed November 26, 1918.
(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 rules 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.
Error from District Court, Cleveland County; F.B. Swank, Judge.
Action by M. Turner and another against Jess Sullivant and another. Judgment for plaintiffs, defendants' motion for new trial overruled, and plaintiffs' motion for new trial overruled, and plaintiffs' and defendants appeal. Causes consolidated, and judgment reversed and remanded, with direction to grant a new trial.
W.M. Newell, Ben F. Williams, and J.E. Luttrell, for plaintiffs in error in No. 8247, and for defendants in error in No. 8233.
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 same 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 set 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 numerous authorities to sustain their contention 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 court, 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 theory upon which the judgment of the court below may be sustained, is applicable, and, since the brief filed in behalf 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 P. 1097.
The judgment is therefore reversed and remanded, with directions to the trial court to grant a new trial.
All the Justices concur.