Opinion
No. 23022
February 26, 1935.
(Syllabus)
APPEAL AND ERROR — Review — Reversal of Cause Where Defendant in Error Fails to File Brief.
Where the plaintiff in error appeals from an adverse judgment in an action against a municipality arising upon claims under alleged contract with such municipality and files a brief, and the municipality, after direction by this court, fails to furnish brief, this court may examine the record, and, where it reasonably supports the allegations of the plaintiff in error, reverse and remand the cause for a new trial.
Appeal from District Court, Cherokee County; W. A. Woodruff, Judge.
Action by the Oklahoma Corrugated Steel Iron Company against the Board of Commissioners of Cherokee County, on claims arising out of contract. From a judgment for defendant, plaintiff appeals.
Judgment reversed, and cause remanded for a new trial.
Malcolm E. Rosser, of Muskogee, for plaintiff in error.
Claude E. Thompson, Co. Atty., of Tahlequah, for defendant in error.
This action was commenced in the district court of Cherokee county by the Oklahoma Corrugated Steel Iron Company, as plaintiff, against the board of county commissioners of Cherokee county, as defendants.
The plaintiff sought to recover on two causes of action, both ex contractu, one for the rent of a road grader, the other for material alleged to have been sold to the county by the plaintiff. Trial of the cause in the court below resulted in a judgment in favor of the defendant, from which plaintiff has perfected its appeal to this court, appearing herein as plaintiff in error.
The plaintiff in error has filed its brief in support of its appeal. The county attorney of Cherokee county has, for some unexplained reason, failed to present a brief. This in spite of the fact that this court has previously entered a special order directing that brief be filed.
The authorities cited in the brief of plaintiff in error seem to support the legality of the transaction upon which the action was based and the legal obligation of the county to pay the same.
In the case of Fabric Fire Hose Co. v. Caddo, 59 Okla. 89, 158 P. 350, we said:
"Where plaintiff in error has filed his brief in accordance with the rules of this court, and the defendant has filed no brief, and the plaintiff's brief appears to fairly sustain the assignments of error, the cause may be reversed."
In accordance with the above-quoted rule of law, this cause is reversed and remanded to the district court of Cherokee county for a new trial.
McNEILL, C.J., and BAYLESS, WELCH, and CORN, JJ., concur.