Summary
In O'Dell v. Sharp, 182 Okla. 534, 78 P.2d 810, we said that where an appeal is filed in this court and the defendant in error on 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 to proceed in accordance with said allegations of the petition in error.
Summary of this case from Fairview Ice Co. v. WigginsOpinion
No. 28414.
April 26, 1938.
(Syllabus.)
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 by W.G. O'Dell against H.H. Sharp, doing business as Republic Life Agency. From the order sustaining the demurrer to the evidence and entering judgment for the defendant, plaintiff appeals. Reversed and remanded, with directions.
Harry D. Pitchford, for plaintiff in error.
Holden, Coe Holtzendorff, for defendant in error.
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 Okla. 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."
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.
Reversed and remanded, with directions.
BAYLESS, V. C. J., and CORN, GIBSON, HURST, and DAVISON, JJ., concur.