answer defense in Oklahoma

2010Counsel representing the State filed an Entry of Appearance but then neither filed a Response to Petition in Error nor an Answer brief, and by virtue of an order of the Oklahoma Supreme Court, this case is submitted based upon Appellant's brief only. ¶ 3 Although reversal is never automatic when an appellee fails to file an answer brief, Hamid v. Sew Original, 1982 OK 46 , 645 P.2d 496 , this Court is under no duty to search the record for some theory to sustain the trial court judgment, and will ordinarily, where the brief in chief is reasonably supportive of the allegations of error, reverse

2010Counsel representing the State filed an Entry of Appearance but then neither filed a Response to Petition in Error nor an Answer brief, and by virtue of an order of the Oklahoma Supreme Court, this case is submitted based upon Appellant's brief only. ¶ 3 Although reversal is never automatic when an appellee fails to file an answer brief, Hamid v. Sew Original, 1982 OK 46 , 645 P.2d 496 , this Court is under no duty to search the record for some theory to sustain the trial court judgment, and will ordinarily, where the brief in chief is reasonably supportive of the allegations of error, reverse

1979In Every v. Every, Okl., 293 P.2d 612, 614, 615 (1956), this Court stated: "Condonation in the law of divorce is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness. 27 C.J.S., Divorce, § 59, p. 608; and as this court said in McDaniels v. McDaniels, 152 Okl. 258 , 4 P.2d 112 , 114: `Condonation is an affirmative defense, and, like other affirmative defenses, must be specially pleaded or insisted upon in the answer as a defense.'" [Emphasis added] In Estee v. Este

1979In Every v. Every, Okl., 293 P.2d 612, 614, 615 (1956), this Court stated: "Condonation in the law of divorce is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness. 27 C.J.S., Divorce, § 59, p. 608; and as this court said in McDaniels v. McDaniels, 152 Okl. 258 , 4 P.2d 112 , 114: `Condonation is an affirmative defense, and, like other affirmative defenses, must be specially pleaded or insisted upon in the answer as a defense.'" [Emphasis added] In Estee v. Este

1936In order to take advantage of the ruling on a demurrer when it is sustained, the party must stand upon his pleading, held to be defective, and not amend.’ “To the same effect are Kingman & Co. v. Pixley, 7 Okla. 351 , 54 P. 494 ; Berry v. Barton, 12 Okla. 221 , 71 P. 1074 , 66 L.

1916In order to take advantage of the ruling on a demurrer when it is sustained, the party must stand upon his pleading, held to be defective, and not amend.” To the same effect are: Kingman & Co. v. Pixley, 7 Okla. 351 , 54 Pac. 494 ; Berry et al. v. Barton et al., 12 Okla. 221 , 71 Pac. 1074 , 66 L.

1936In order to take advantage of the ruling on a demurrer when it is sustained, the party must stand upon his pleading, held to be defective, and not amend.’ “To the same effect are Kingman & Co. v. Pixley, 7 Okla. 351 , 54 P. 494 ; Berry v. Barton, 12 Okla. 221 , 71 P. 1074 , 66 L.

1936In order to take advantage of the ruling on a demurrer when it is sustained, the party must stand upon his pleading, held to be defective, and not amend.’ “To the same effect are Kingman & Co. v. Pixley, 7 Okla. 351 , 54 P. 494 ; Berry v. Barton, 12 Okla. 221 , 71 P. 1074 , 66 L.

1936In order to take advantage of the ruling on a demurrer when it is sustained, the party must stand upon his pleading, held to be defective, and not amend.’ “To the same effect are Kingman & Co. v. Pixley, 7 Okla. 351 , 54 P. 494 ; Berry v. Barton, 12 Okla. 221 , 71 P. 1074 , 66 L.

1916In order to take advantage of the ruling on a demurrer when it is sustained, the party must stand upon his pleading, held to be defective, and not amend.” To the same effect are: Kingman & Co. v. Pixley, 7 Okla. 351 , 54 Pac. 494 ; Berry et al. v. Barton et al., 12 Okla. 221 , 71 Pac. 1074 , 66 L.

2012However, as an optional basis for affirming the termination order, State contends there is clear and convincing evidence of other conditions in Mother's home which she failed to correct. 134 It has long been held by Oklahoma courts that "termination [can] be sane-tioned only on a finding that [the parent] failed to correct the very condition which lead to the adjudication of [the child]." Mater of A.D.B., 1991 OK 96, ¶ 12 , 818 P.2d 483, 488 (relying on Matter of J.F.C, 1978 OK 56 , 577 P.2d 1300 ).

2012However, as an optional basis for affirming the termination order, State contends there is clear and convincing evidence of other conditions in Mother's home which she failed to correct. 134 It has long been held by Oklahoma courts that "termination [can] be sane-tioned only on a finding that [the parent] failed to correct the very condition which lead to the adjudication of [the child]." Mater of A.D.B., 1991 OK 96, ¶ 12 , 818 P.2d 483, 488 (relying on Matter of J.F.C, 1978 OK 56 , 577 P.2d 1300 ).

2012However, as an optional basis for affirming the termination order, State contends there is clear and convincing evidence of other conditions in Mother's home which she failed to correct. 134 It has long been held by Oklahoma courts that "termination [can] be sane-tioned only on a finding that [the parent] failed to correct the very condition which lead to the adjudication of [the child]." Mater of A.D.B., 1991 OK 96, ¶ 12 , 818 P.2d 483, 488 (relying on Matter of J.F.C, 1978 OK 56 , 577 P.2d 1300 ).

2010Sneed v. Sneed, 1978 OK 138 , 585 P.2d 1363 . ¶ 4 White's second proposition is determinative of this appeal.

2010Sneed v. Sneed, 1978 OK 138 , 585 P.2d 1363 . ¶ 4 White's second proposition is determinative of this appeal.

2002Baker, 199 F.2d at 291 (citations omitted). ¶ 24 Although the case does not involve determination of a workers' compensation insurance carrier's subrogation rights, Berry v. Empire Indemnity Insurance Company, 1981 OK 106 , 634 P.2d 718 , provides direct guidance for situations in which the injured worker is "`not one among several negligent co-actors.'" Id. at ¶ 6, 634 P.2d at 719 (quoting Boyles v. Okla.

2002Baker, 199 F.2d at 291 (citations omitted). ¶ 24 Although the case does not involve determination of a workers' compensation insurance carrier's subrogation rights, Berry v. Empire Indemnity Insurance Company, 1981 OK 106 , 634 P.2d 718 , provides direct guidance for situations in which the injured worker is "`not one among several negligent co-actors.'" Id. at ¶ 6, 634 P.2d at 719 (quoting Boyles v. Okla.

1979This he did not do. *347 The State further argues that the appellants failed to produce sufficient evidence to prove the invalidity of the execution of the search warrant, citing Daniels v. State, Okl.Cr., 441 P.2d 494 (1967).

1979In Every v. Every, Okl., 293 P.2d 612, 614, 615 (1956), this Court stated: "Condonation in the law of divorce is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness. 27 C.J.S., Divorce, § 59, p. 608; and as this court said in McDaniels v. McDaniels, 152 Okl. 258 , 4 P.2d 112 , 114: `Condonation is an affirmative defense, and, like other affirmative defenses, must be specially pleaded or insisted upon in the answer as a defense.'" [Emphasis added] In Estee v. Este

1979In Every v. Every, Okl., 293 P.2d 612, 614, 615 (1956), this Court stated: "Condonation in the law of divorce is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness. 27 C.J.S., Divorce, § 59, p. 608; and as this court said in McDaniels v. McDaniels, 152 Okl. 258 , 4 P.2d 112 , 114: `Condonation is an affirmative defense, and, like other affirmative defenses, must be specially pleaded or insisted upon in the answer as a defense.'" [Emphasis added] In Estee v. Este

1968Spartan Aircraft Co. v. Merchant et al. (1954), Okl., 274 P.2d 1018 , involved a similar fact situation and the employer therein, without mentioning the matter of the emergency, or non-emergency, nature of the surgery involved, contended that the claimant had not sustained an injured disc in the incident involved and any disability the claimant might have was not caused by the incident but by an unnecessary operation, and, therefore, the employer was not liable for compensation for such disability.

1968The employer’s third proposition is that the State Industrial Court made no specific findings of the ultimate facts concerning the issues raised by the third defense set forth in the employer’s answer to the claim (which is based upon the above-mentioned theory of the case), and, therefore, the award must be vacated [citing Young v. City of Holdenville et al. (1963), Okl., 384 P.2d 905 ].

1965On the contrary, we think that in view of the trial court’s failure to take any step whatsoever to alleviate the harm done by plaintiff’s prejudicial remark and of the condition of the evidence on some of the matters vitally affecting defendants’ liability, this is one of those “close” cases referred to in the quotation from Fike v. Peters, 175 Okl. 334 , 52 P.2d 700 , included in our opinion in Redman v. McDaniel, Old., 333 P.2d 500, 503 , where granting a new trial offers the only means of undoing the possible harm done, and of fostering justice.

1965On the contrary, we think that in view of the trial court’s failure to take any step whatsoever to alleviate the harm done by plaintiff’s prejudicial remark and of the condition of the evidence on some of the matters vitally affecting defendants’ liability, this is one of those “close” cases referred to in the quotation from Fike v. Peters, 175 Okl. 334 , 52 P.2d 700 , included in our opinion in Redman v. McDaniel, Old., 333 P.2d 500, 503 , where granting a new trial offers the only means of undoing the possible harm done, and of fostering justice.

1965On the contrary, we think that in view of the trial court’s failure to take any step whatsoever to alleviate the harm done by plaintiff’s prejudicial remark and of the condition of the evidence on some of the matters vitally affecting defendants’ liability, this is one of those “close” cases referred to in the quotation from Fike v. Peters, 175 Okl. 334 , 52 P.2d 700 , included in our opinion in Redman v. McDaniel, Old., 333 P.2d 500, 503 , where granting a new trial offers the only means of undoing the possible harm done, and of fostering justice.

1956This is on the ground that reconciliation of the parties is not the legal equivalent of' a dismissal of the action.” See Payne v. Payne, 157 Or. 428 , 72 P.2d 536 , where it was held: "The conditional resumption of marital relations between parties to wife’s divorce suit on husband’s promise of future good conduct did not defeat court’s jurisdiction to hear and determine suit, which was not dismissed, where such promise was not kept.” In that case, as in the case at bar, petition was filed, a reconciliation effected, its terms violated, and additional pleadings filed without a dismissal being

1956This is on the ground that reconciliation of the parties is not the legal equivalent of' a dismissal of the action.” See Payne v. Payne, 157 Or. 428 , 72 P.2d 536 , where it was held: "The conditional resumption of marital relations between parties to wife’s divorce suit on husband’s promise of future good conduct did not defeat court’s jurisdiction to hear and determine suit, which was not dismissed, where such promise was not kept.” In that case, as in the case at bar, petition was filed, a reconciliation effected, its terms violated, and additional pleadings filed without a dismissal being

1952App.) 36 S. W. 2d 316 ; and a judgment thereon would not have the effect of finding or establishing anything in the defendant’s favor. . . ” Hansen v. Holland (Tex. Civ.

1937In Swan v. Kuehner, 157 Okla. 37 , 10 P. (2d) 707 , we said: “There is a material distinction between! a resale tax deed issued by one with authority to sell the land at a resale and to issue the deed and a resale tax deed issued by one without authority to sell the land at a resale and to issue the deed.” And that: “The statute of limitations with reference to resale tax deeds relates to resale tax deeds issued by one with authority to sell the land at a resale and to issue a deed.

1937In Swan v. Kuehner, 157 Okla. 37 , 10 P. (2d) 707 , we said: “There is a material distinction between! a resale tax deed issued by one with authority to sell the land at a resale and to issue the deed and a resale tax deed issued by one without authority to sell the land at a resale and to issue the deed.” And that: “The statute of limitations with reference to resale tax deeds relates to resale tax deeds issued by one with authority to sell the land at a resale and to issue a deed.

1936Cushing v. Cummings, 72 Okla. 176 , 179 P. 762 .

1936Cushing v. Cummings, 72 Okla. 176 , 179 P. 762 .

1934The movant defendant in error has filed a motion to dismiss the case, and urges that this court is without jurisdiction to hear the error complained of, and cites as his authorities the rule laid down in Grunawalt v. Grunawalt, 24 Okla. 756 , 104 P. 905 , and Oklahoma City Land & Development Co. v. Patterson, 73 Okla. 234 , 175 P. 934 , in which this court holds to the effect that such an order is not a final order and not appeal-able.

1934The movant defendant in error has filed a motion to dismiss the case, and urges that this court is without jurisdiction to hear the error complained of, and cites as his authorities the rule laid down in Grunawalt v. Grunawalt, 24 Okla. 756 , 104 P. 905 , and Oklahoma City Land & Development Co. v. Patterson, 73 Okla. 234 , 175 P. 934 , in which this court holds to the effect that such an order is not a final order and not appeal-able.

1934The movant defendant in error has filed a motion to dismiss the case, and urges that this court is without jurisdiction to hear the error complained of, and cites as his authorities the rule laid down in Grunawalt v. Grunawalt, 24 Okla. 756 , 104 P. 905 , and Oklahoma City Land & Development Co. v. Patterson, 73 Okla. 234 , 175 P. 934 , in which this court holds to the effect that such an order is not a final order and not appeal-able.

1934The movant defendant in error has filed a motion to dismiss the case, and urges that this court is without jurisdiction to hear the error complained of, and cites as his authorities the rule laid down in Grunawalt v. Grunawalt, 24 Okla. 756 , 104 P. 905 , and Oklahoma City Land & Development Co. v. Patterson, 73 Okla. 234 , 175 P. 934 , in which this court holds to the effect that such an order is not a final order and not appeal-able.

1926In the case of McNinch v. Northwest Thresher Co., 23 Okla. 386 , 100 Pac. 524 , it is held in -the second paragraph of the syllabus : “Where by the terms- of a written contract it is specifically stated that it is executed and deliv„0i*ed for and in consideration of the credit granted by one of the -parties to> a third person on the purchase price of certain machinery bought of said party by said third person, such provision in relation to the consideration binds the parties within the rules applicable to written contracts, and can no more be altered or varied by oral evidence than any other p

1926In the case of McNinch v. Northwest Thresher Co., 23 Okla. 386 , 100 Pac. 524 , it is held in -the second paragraph of the syllabus : “Where by the terms- of a written contract it is specifically stated that it is executed and deliv„0i*ed for and in consideration of the credit granted by one of the -parties to> a third person on the purchase price of certain machinery bought of said party by said third person, such provision in relation to the consideration binds the parties within the rules applicable to written contracts, and can no more be altered or varied by oral evidence than any other p

1926In the case of McNinch v. Northwest Thresher Co., 23 Okla. 386 , 100 Pac. 524 , it is held in -the second paragraph of the syllabus : “Where by the terms- of a written contract it is specifically stated that it is executed and deliv„0i*ed for and in consideration of the credit granted by one of the -parties to> a third person on the purchase price of certain machinery bought of said party by said third person, such provision in relation to the consideration binds the parties within the rules applicable to written contracts, and can no more be altered or varied by oral evidence than any other p

1926In the case of McNinch v. Northwest Thresher Co., 23 Okla. 386 , 100 Pac. 524 , it is held in -the second paragraph of the syllabus : “Where by the terms- of a written contract it is specifically stated that it is executed and deliv„0i*ed for and in consideration of the credit granted by one of the -parties to> a third person on the purchase price of certain machinery bought of said party by said third person, such provision in relation to the consideration binds the parties within the rules applicable to written contracts, and can no more be altered or varied by oral evidence than any other p

1918“Where the petition states a cause of action and the answer states a defense, which is denied by the reply, it is a reversible error to sustain a motion on the pleadings.” Robert v. Mullen, 61 Okla. 40 , 160 Pac. 83 ; Mackey v. Boswell, 63 Okla. 20 , 162 Pac 193 .

1918“Where the petition states a cause of action and the answer states a defense, which is denied by the reply, it is a reversible error to sustain a motion on the pleadings.” Robert v. Mullen, 61 Okla. 40 , 160 Pac. 83 ; Mackey v. Boswell, 63 Okla. 20 , 162 Pac 193 .

1918“Where the petition states a cause of action and the answer states a defense, which is denied by the reply, it is a reversible error to sustain a motion on the pleadings.” Robert v. Mullen, 61 Okla. 40 , 160 Pac. 83 ; Mackey v. Boswell, 63 Okla. 20 , 162 Pac 193 .

1918“Where the petition states a cause of action and the answer states a defense, which is denied by the reply, it is a reversible error to sustain a motion on the pleadings.” Robert v. Mullen, 61 Okla. 40 , 160 Pac. 83 ; Mackey v. Boswell, 63 Okla. 20 , 162 Pac 193 .

1917Kesterson, etc. * * * It is sufficient to say that a plaintiff must recover upon his own title, and that the general denial was sufficient to put the plaintiff upon proof, and therefore the answer stated a defense.” In Francis, Sheriff, et al. v. Guaranty State Bank of Texola, 44 Okla. 446 , 145 Pac. 324 , it is said: .

1917Kesterson, etc. * * * It is sufficient to say that a plaintiff must recover upon his own title, and that the general denial was sufficient to put the plaintiff upon proof, and therefore the answer stated a defense.” In Francis, Sheriff, et al. v. Guaranty State Bank of Texola, 44 Okla. 446 , 145 Pac. 324 , it is said: .

1914Plaintiff in error contends that the answer contained allegations sufficient to constitute a defense upon two grounds : First, that the claim was duly presented, audited, and allowed by the board of county commissioners of such county, and that, no appeal having been taken from such order, it became final, and the county is estopped from recovery in this action; second, that the services for which such claim was allowed were not within the ordinary duties of county treasurer, but were necessary, and that the county received the benefit thereof, and should be held liable therefor, oth these que