Nettograph Machine Co. v. Brown and Trueblood , 19 Okla. 77 ( 1907 )

Opinion of the court by The Nettograph Machine Company, a corporation organized under the laws of the state of Missouri, brought its action in the probate court of Oklahoma county against the defendants, A. J. Brown and E. C. Trueblood, administrator of the estate of Jennie Brown, deceased, to recover judgment upon a promissory note in the sum of $500 executed by the defendants on the 24th day of September, 1903, to the Oklahoma Trust Banking Company, due in ninety days from date, with six per cent. interest from maturity, and $50 attorneys fees, and by the payee assigned to the Nettograph Machine Company of St. Louis, the plaintiff in the action. The defendants set up by way of answer that the note was executed for 60 Nettograph machines and the right to use them in Oklahoma and Indian Territory, and alleged that the agent of the plaintiff made certain false and fraudulent representations by which the defendants were induced to execute the note, and they seek to either rescind and recover damages, or to recoup damages against the note if the sale is affirmed. It appears that the contract was in writing and is full and complete, but contains no warranty or representations as to the character of the machines or the work they can accomplish. On the trial the defendants were permitted, over the objection of the plaintiff, to introduce evidence tending to establish certain oral representations in the nature of warranties or of representations as to the qualities of the machines or the character of the work they were capable of performing, also of the earning capacity of the machines, which were operated by the "nickel-in-the-slot" device. The cause was tried to a jury, and verdict returned for the defendants. The plaintiff filed his motion for new trial, which was overruled, and judgment rendered in favor of defendants for the costs. The plaintiff brings the cause to this court by petition in error, and has filed a brief in which a number of specific errors are alleged and authorities cited in support of its position. The defendants have filed no brief and offered no excuse for their default.

The failure of the defendants in error to appear or file any brief must be taken as a confession of the alleged errors, at least sufficient to warrant a reversal of the judgment. Enc. Pl. Pr. 729; Parsons v. Haskell, 30 Ill. App. 444; Mattoon v.Holmes, 14 Ill. App. 392; Green v. Blalack, 25 Tex. 417;Richter v. Fresno Canal Co. (Cal.) 36 P. 96; Davis v. Hart, (Cal.) 37 P. 486. This court has by rule required briefs to be filed in all civil causes, and has given the court the right to exercise its discretion as to the disposition to be made of the case when no brief is filed. The rule is as follows: "Rule VI. In each civil cause filed in this court, counsel for plaintiff in error shall serve his brief on counsel for defendant in error within forty days after filing his petition in error, and shall at the same time file fifteen copies of said brief with the clerk of the supreme court. And the defendant in error shall have thirty days after service on him of plaintiff in error's brief, in which to serve and file answer briefs. Proof of service of briefs must be filed with the clerk of this court within ten days after service. In case of failure to comply with the requirements of this rule, the court may continue or dismiss the cause, or reverse or affirm the judgment." From a reading of plaintiff's brief and a casual inspection of the record, we feel so confident that there is fatal error in the record that we are satisfied no injustice is being done by a reversal.

The judgment of the probate court of Oklahoma county is reversed, and a new trial ordered, at the costs of defendants in error

Irwin, J., absent; all the other Justices concurring.