Opinion
No. 2112
Opinion Filed November 19, 1912.
JUSTICES OF THE PEACE — Appeal — Answer. When a case has been tried without a written answer by the defendant, it is not necessary for the defendant, on appeal to the county court, to file an answer, under section 6388 of Comp. Laws 1909.
(Syllabus by Ames, C.)
Error from Sequoyah County Court; W. N. Littlejohn, Judge.
Action by Leathers Brothers against the St. Louis, Iron Mountain Southern Railway Company. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.
Lovick P. Miles and Vincent M. Miles, for plaintiff in error.
Kyle McCombs, for defendants in error.
From a justice court, where judgment was rendered against the defendant, it appealed to the county court. In the county court, without setting the case for trial, the defendant was adjudged in default because it had not filed an answer and judgment by default was rendered against it upon the theory that on the appeal it was necessary for the defendant to answer, and this is the only question presented in the brief of the plaintiff in error. After the case was set for submission, the defendants in error obtained leave of court to file briefs, but have not done so. It is a settled practice that a written answer is not necessary in a justice court, and that on appeal the case shall be tried upon the original papers upon which the issue was presented to the justice court, unless new pleadings are filed by leave of court. Section 6388, Comp. Laws 1909; Johnson v. Acme Harvesting Mach. Co., 24 Okla. 468, 103 P. 638. This being true, the defendant was not in default, because no written answer was necessary, and was entitled to a trial.
The judgment of the county court should therefore be reversed, and the cause remanded for further proceedings.
By the Court: It is so ordered.