BARNARD v. WALLACE

BARNARD v. WALLACE
1943 OK 26
133 P.2d 542
192 Okla. 27
Case Number: 30923
Decided: 01/26/1943
Supreme Court of Oklahoma

BARNARD et al.
v.
WALLACE, Ex'r, et al.

Syllabus

¶0 APPEAL AND ERROR-Reversal and remand 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 District Court, Creek County; C. 0. Beaver, Judge.

Action to recover certain lands and for damages by James Isaiah Wallace, executor of the estate of Lete Kelvin Stevens, deceased, et al. against H. G. Barnard et al.; Isora Alexander Lee et al. intervening. From judgment for interveners, the defendants appeal. Reversed and remanded, with directions.

John Rogers, Carter Smith, Edward H. Chandler, Summers Hardy, R. W. Garrett, Robert L. Imler, and C. H. Rosenstein, all of Tulsa, and D. A. Richardson, Charles B. Cochran, and John H. Miley, all of Oklahoma City, for plaintiffs in error.
Charles B. Rogers, W. B. Blair, John L. Ward, and John L. Ward, Jr., all of Tulsa, for defendants in error Izora Alexander Lee et al.
B. C. Franklin, W. N. Maben, and Hudson & Hudson, all of Tulsa, for defendants and cross-petitioners in error James Isaiah Wallace et al.
H. F. Fulling, of Tulsa, for crosspetitioners in error Rena Fleming et al.
Z. I. J. Holt, of Tulsa, for defendants in error and cross-petitioners Eunice Johnson et al.
F. C. Helm, of Henryetta, for defendant and cross-petitioner in error Fred Johnson.
G. C. Spillers, of Tulsa, for defendant in error and cross-petitioner in error Joseph E. Thompson.
A. H. Thomas and Harry Seaton, of Tulsa, for defendants in error Essie Mae Bruner et al.
Glenn 0. Young, of Sapulpa, for defendant in error and cross-petitioner Nancy Barnett.
Hugh Webster, of Tulsa, for defendant in error and cross-petitioner Jim Payne Woods.

PER CURIAM.

¶1 Following trial and judgment for interveners, Izora Alexander Lee et al., the defendants unsuccessfully sought new trial and then appealed to this court.

¶2 On the 25th day of January, 1943 there is filed and presented in this court a confession of error signed on behalf of all interested parties and presented upon appearance of their attorneys.

¶3 In such case we have held that we will examine the record, and where the allegations of error appear to be sustained the confession of error will be taken as true. See O'Dell v. Sharp, 182 Okla. 534, 78 P.2d 810, and Bradshaw v. Myers, decided November 24, 1942, 191 Okla. 506, 131 P.2d 79.

¶4 This cause is therefore reversed, and remanded, with directions to the trial court to vacate the judgment heretofore rendered in that court, and release the sureties and principals on the supersedeas bond.

¶5 CORN, C. J., and RILEY, OSBORN, BAYLESS, WELCH, HURST, DAVISON, and ARNOLD, JJ., concur. GIBSON, V. C. J., absent.