Opinion
No. 30320.
January 27, 1942.
APPEAL AND ERROR — Reversal and remand of cause upon confession of error.
Where the plaintiff in error has appealed from an order sustaining a demurrer to the petition, and thereafter the defendant in error files a confession of error which admits that the court erred in sustaining the demurrer, this court will examine the record, brief, and confession of error, and if such confession of error is reasonably supported, will reverse and remand the cause with directions.
Appeal from Superior Court, Seminole County; Otis H. Presson, Judge.
Action for damages for wrongful conversion by H.C. Kelly against the First National Bank of Seminole. Demurrer to petition sustained, and plaintiff appeals. Reversed and remanded, with directions.
Bishop Bishop, of Seminole, for plaintiff in error.
Wells Spurr, of Seminole, for defendant in error.
This action was commenced by the plaintiff in error, plaintiff below, on the 26th day of April, 1940, by the filing of a petition alleging damages for wrongful conversion of an automobile by the First National Bank of Seminole, Okla.
The court sustained a demurrer to the petition, and plaintiff appealed to this court, filed his petition with case-made attached on April 4, 1941. On August 6, 1941, defendant filed a confession of error in which it is stated that after a careful review of the brief of the plaintiff in error and the authorities in support of the same, the defendant in error is of the opinion that the trial judge erred in sustaining the demurrer to the petition of the plaintiff and requests that upon such confession of error the cause be reversed and remanded, with directions to the lower court to overrule such demurrer to the petition and to allow the defendant further time in which to plead or answer.
This court has repeatedly held that where plaintiff in error has perfected his appeal and thereafter the defendant in error files a confession of error, the record will be examined, and if such confession is reasonably supported, the cause will be reversed with directions. Nelson v. Jones, 133 Okla. 92, 271 P. 240; O'Dell v. Sharp, 182 Okla. 534, 78 P.2d 810.
The court has examined the record, brief, and confession of error and finds the allegations of error reasonably supported. The cause is therefore reversed and remanded, with directions to the trial court to overrule the demurrer to the petition and to proceed in accordance with the confession of error.
WELCH, C. J., CORN, V. C. J., and RILEY, OSBORN, BAYLESS, GIBSON, HURST, DAVISON, and ARNOLD, JJ., concur.