Opinion
No. 29898.
April 13, 1943.
(Syllabus.)
APPEAL AND ERROR — Failure of defendant in error to file brief — Reversal.
Where the plaintiff appeals from an adverse judgment in a mandamus proceeding against municipal officers, and the officers, after being directed to file an answer brief, fail to do so, this court may examine the record and, where the record and brief of plaintiff reasonably support the assignments of error, reverse the cause for a new trial.
Appeal from District Court, Sequoyah County; Enloe V. Vernor, Judge.
Mandamus by the State ex rel. Florence B. Mayo against Frank Connelley et al., members of the Board of County Commissioners of Sequoyah County, et al. From adverse ruling on her motion for new trial, relator appeals. Reversed, with directions.
W.B. Wall and J. Fred Green, both of Sallisaw, for plaintiff in error.
This is an action in mandamus to compel the taxing authorities of Sequoyah county to make a supplemental appropriation to provide for payment of a balance of $851.30 alleged to be due for publishing a notice of tax sale. Upon trial of the issues judgment was entered commanding a supplemental appropriation of $250 to be made. The court further directed the county treasurer to hold intact the sum of $900 out of the money available for supplemental appropriations to abide the outcome of this case. Though succeeding fiscal years have passed, we assume for the purpose of deciding this case that the funds are still so held, and that the question has not become moot. Relator filed a motion for a new trial upon the usual grounds and upon the ground of newly discovered evidence. From an adverse ruling thereon, she appealed.
Relator has filed a brief herein which together with the record herein reasonably supports her assignments of error. Although under the rules of this court defendants' brief has been due since September 19, 1940, and they have been directed to file the same, they have neglected to do so. On September 3, 1942, relator filed a motion for judgment. Defendants were directed to respond to said motion but failed to do so. Under such circumstances, the judgment should be reversed. See World Fire Marine Ins. Co. of Hartford, Conn., v. Morgan, 189 Okla. 579, 118 P.2d 1017; Oklahoma Corrugated Steel Iron Co. v. Board of Com'rs of Cherokee County, 170 Okla. 618, 41 P.2d 633.
Reversed, with directions to grant relator a new trial.
CORN, C. J., GIBSON, V. C. J., and RILEY, DAVISON, and ARNOLD, JJ., concur. OSBORN, BAYLESS, and WELCH, JJ., absent.