Flanagan v. Davis

DUNN, O. J. This case presents error from the district court of Oklahoma county. September 10, 1904, E. G. Flanagan, as plaintiff, filed his petition in the district court -of that county praying judgment against the defendants in error, Jennie Davis and William Davis, in the sum of $49.50, with interest thereon, as a balance due on account of labor performed; also praying “foreclosure of a mechanic’s lien upon certain real estate in said county. To this action J. B. Rowlett, who appears here as plaintiff in error, was also made a party, defendant, for the reason that he likewise was claiming a mechanic’s lien on the same real property. October 3, 1904, the said Rowlett filed an answer and cross-petition in which he prayed judgment against his co-defendants, in the sum of $59.85, and a foreclosure of the said mechanic’s lien. October 13, 1904, the defendant, Jennie Davis and William Davis, filed their answer to the pleadings filed by the other parties. Gen *423 eral denials were filed for replies on ihe part of Flanagan and Eowlett, and, on the issues thus framed, the case came on for.trial before a jury January 15, 1908, and resulted in a verdict for the defendants, Jennie Davis and William Davis. In due time the said Flanagan and Eowlett filed their motion for new trial on the ground of misconduct on the part of the prevailing parties and that the verdict was not sustained by sufficient evidence, was contrary to law, and on the ground of newly discovered evidence. This motion was by the court denied. Whereupon the said Flanagan and Eowlett brought the case to this court for review on petition in error and ease-made. Counsel for defendants in error have filed no brief nor offered . any excuse for their failure to do so. Buie 7 of this .court (20 Okla. viii, 95 Pac. vi) provides for the filing of briefs by counsel for parties interested iii actions pending here on appeal, and provides, “in case of failure to comply with the 'requirements of this rule, the court may continue or dismiss the cause, or reverse or affirm the judgment." We have read the brief filed by counsel for plaintiff in error and from a consideration thereof it appears to us that the propositions relied on are well taken. In-the absence of a brief on the part of counsel for defendant in error we are not given that assistance which we should have in determining the theory upon which the court denied plaintiff’s motion and rendered judgment, and the pressure upon the time of this court is such that it cannot, in justice to other litigants, brief cases for parties who elect to neglect ib. The leading case in this court on this proposition is Butter et al. v. McSpadden, 25 Okla, 465, 107 Pac. 170. This case has been followed in a large number of cases, among which we note the following: Buckner v. Okla. Nat. Bank, of Shawnee, et al., 25 Okla. 472, 106 Pac. 959; Reeves & Co. v. Brennan, 25 Okla. 514, 106 Pac. 959; Butler v. Stinson, 26 Okla. 216, 108 Pac. 1103; Ellis et al. v. Outler et al., 25 Okla. 469, 106 Pac. 957. Notwithstanding this rule, however, we have read the record along with the affidavits in support of the motion for new trial *424 and, from a consideration of the entire case, conclude that a new trial should have been awarded by the trial court. The judgment of the trial court is, accordingly, reversed, and plaintiffs in error are granted a new trial. HAYES,, KANE, and TURNEE, JJ., concur; WILLIAMS, J., not participating.