TOLE v. CARTWRIGHT.

TOLE v. CARTWRIGHT.
1915 OK 503
150 P. 208
48 Okla. 342
Case Number: 4266
Decided: 06/22/1915
Supreme Court of Oklahoma

TOLE
v.
CARTWRIGHT.

remanded.

Syllabus

¶0 APPEAL AND ERROR--Failure to File Brief-- Reversal. When a defendant in error fails to file a brief, and assigns no reason for this failure, if on examination of the record and brief of plaintiff in error it appears that the grounds for reversal urged by plaintiff in error are reasonably sustained by his brief, the cause will be reversed.

Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Action by George T. Tole against Mary E. Cartwright. Judgment for defendant, and plaintiff brings error. Reversed and Reardon & Hereford, for plaintiff in error.

BRETT, C.

¶1 This suit was filed in the superior court of Oklahoma county November 15, 1911, by plaintiff in error as plaintiff in that court against the defendant in error as defendant in that court (the parties will be hereafter referred to in this opinion as they appear in the lower court), for possession of certain chattels, alleged to have been mortgaged by defendant to plaintiff. And plaintiff prayed for an order requiring defendant to deliver the chattels under the mortgage to plaintiff, or the value of same in lieu thereof. The defendant answered, admitting the execution of notes and mortgages set out in plaintiff's petition, but pleaded usury, and payment of certain amounts for which she claimed credit. And by cross-petition she asked judgment against plaintiff. The issues were tried to the court and jury. The court properly declared the burden to be on the defendant to establish the allegations set out in her answer and cross-petition, which burden the defendant assumed. And at the close of the evidence offered in her behalf, the plaintiff demurred to the evidence, which was overruled, and plaintiff took his exceptions. The plaintiff then produced evidence in his behalf. The jury returned a verdict for defendant for the return of the property taken by plaintiff under the writ of replevin sued out in the action. Judgment was entered on the verdict, and from this judgment plaintiff appeals to this court.

¶2 Plaintiff assigns 10 errors as grounds of reversal of this judgment, and prays:

"That the judgment so rendered be reversed, set aside, and held for naught, and that judgment be entered in favor of the plaintiff in error for the sum of $ 954.10, with interest and costs of judgment, and for legal title to the personalty."

¶3 The case was filed in this court October 10, 1912, and on May 24, 1915, plaintiff filed his brief. The defendant has filed no brief, although the time for filing same has expired, and has assigned no reason for not filing a brief, and has asked no extension of time in which to do so. We have examined the record and brief of plaintiff, and find the position taken by him is reasonably austained by the authorities cited.

¶4 We recommend that the judgment be reversed, and the cause remanded for new trial.

¶5 By the Court: It is so ordered.