O'DELL v. SHARP

O'DELL v. SHARP
1938 OK 292
78 P.2d 810
182 Okla. 534
Case Number: 28414
Decided: 04/26/1938
Supreme Court of Oklahoma

O'DELL
v.
SHARP

Syllabus

¶0 APPEAL AND ERROR -- Reversal Upon Confession of Error.
Where an appeal is filed in this court, and the appellee upon due consideration files a confession of error which is reasonably sustained by the record, this court may reverse and remand the cause upon such confession of error, with directions.

Appeal from Superior Court, Okmulgee County; Harland A. Carter, Judge.

Action on notes by W. G. O'Dell against H. H. Sharp, doing business as the Republic Life Agency. From an order sustaining a demurrer to the evidence and entering judgment for the defendants, the plaintiff appeals. Reversed and remanded, with directions.

Harry D. Pitchford, of Okmulgee, for plaintiff in error.
Holden, Coe & Holtzendorff, of Oklahoma City, for defendant in error.

PER CURIAM.

¶1 This is an appeal from a judgment of the trial court in an action on promissory notes. At the close of plaintiff's testimony the defendant, without offering any evidence, demurred to the plaintiff's evidence, which demurrer was by the court sustained. The defendant in error has filed a confession of error admitting that the court should not have sustained the demurrer, and prays that the cause be remanded to the district court of Okmulgee county, with directions to set the case for trial and proceed with the cause. In Armstrong v. Taylor, 164 Okl. 37, 22 P.2d 374, this court said: "Where an appeal is filed in this court and the appellee upon due consideration files a confession of error, which is reasonably sustained by the record, this court may reverse and remand the cause upon such confession of error, with directions."

¶2 The record reasonably sustains the confession of error. The cause is therefore reversed and remanded upon confession of error, with directions to vacate the order and judgment, and to grant a new trial.

¶3 Reversed and remanded, with directions.