Ward v. Simpson Merc. Co.

WARREN, J. This is an action wherein Simpson Mercantile Company filed a lawsuit in the district court of Pittsburg county against the defendants, R. D. Ward and Warren G. Ward, upon a promissory note praying judgment thereon for the amount of the principal, interest, and attorney’s fee provided for therein. The defendants answered, admitting the execution of the note, but stating that the note represented the' purchase price of a certain gasoline tractor sold by the plaintiff to defendants and that said tractor was represented to be a new tractor engine of said specified horsepower, capable of plowing and performing any other work that such an engine should perform. Defendants further alleged that instead of a new tractor they discovered that said engine was old, worn, out of repair, and worthless. The plaintiff replied with a general denial. In the trial of the action the trial court sustained a demurrer to the testimony produced by the defendants and directed a verdict in favor of the plaintiff for the amount sued on. It appears that the brief of the plaintiffs in error, defendants below, was duly filed in this court November 26, 1923; that service of copy of the brief was made upon defendant in error, as required by the rules of this court, on November 24, 1923. The record in this case, being petition in error with ease-made attached, wa.s filed in this court December 12, 1921. Defendant has not filed its brief in this cause, and no reason has been given for failure to file such brief. An examination of the récord and of the brief of the plaintiffs in error in support of their appeal appears to reasonably sustain the contentions of the plaintiffs in error. It is not required of this court that the record be searched to find some theory on which to sustain the judgment of the trial court. Where the appeal is in all things regular and the plaintiff in error has filed his brief within the time provided by the rules of this court, and has served copy thereof in due time on the defendant in error, said defendant in error failing to file answer brief, the record apparently sustaining the contentions in error, this court will reverse and remand the cause to the trial court to grant a new trial. Kennedy v. Supnick, 82 Okla. 283, 200 Pac. 151; Security Insurance Company v. Droke, 40 Okla. 116, 136 Pac. 430. The judgment is reversed, and the cause remanded to the trial court, with directions to grant the defendants in such court a new trial. JOHNSON, C. J., and NICHOLSON, HARRISON, MASON, and LYDICK, JJ., concur.