Board of Com'rs Garvin Co. v. Pyeatt

Opinion by COLLIER, C. This is an action brought by the defendant in error against plaintiff in error, for the recovery of certain taxes paid by numerous persons, “by mistake of law,” for a refund, for which claims had been filed with the board of county commissioners and disallowed, which claims had all been assigned to defendant in error, and for the recovery of $293.49, alleged to be due defendant in error as commission on a certain tax ferret contract with the county. Hereafter the parties will be designated as they were in the trial court. The defendant interposed a demurrer to the petition, which was heard by the court and overruled and exceptions saved, and, the defendant refusing to plead further, judgment was entered against defendant in the sum of $1,253.14. Defendant has served and filed a brief in compliance with the rules of this court, and plaintiff has neither filed a brief nor offered any excuse for his failure so to do. We have examined the brief of plaintiff in error and find the contention of plaintiff in error, under the holding of this court in Johnson v. Grady County, 50 Okla. 188, 150 Pac. 497, reasonably supported by his brief. It is the settled holding of this court, where such is the case, not to search for a theory upon which the judgment can be affirmed, but to reverse the judgment. Cox v. Dempster Mill & Mfg. Co., 50 Okla. 703, 150 Pac. 465; Turman v. Ingram, 50 Okla. 47, 150 Pac. 684; Switzer Lbr. Co. v. Brazell, 50 Okla. 329, 150 Pac. 1064; Dow Coal. Co. v. Anderson, 48 Okla. 704, 150 Pac. 881. We therefore recommend that said judgment be reversed and the cause remanded. By the Court: It is so ordered.