Opinion
No. 28273.
March 26, 1940.
(Syllabus.)
APPEAL AND ERROR — Reversal — Failure of defendant in error to file brief.
Where plaintiff in error has served and filed brief, but the defendants in error have neither filed a brief nor offered any excuse for their failure to do so, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may, where the authorities cited in the brief filed, appear reasonably to sustain the assignments of error, reverse the cause, with directions.
Appeal from Court of Common Pleas, Tulsa County; Grady Cornett, Judge.
Action by Viola May Brown, guardian of Charles E. Brown, an incompetent, against the Triangle Motor Company and Dave Murdock to recover money judgment. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.
Edward J. Fleming, of Tulsa, for plaintiff in error.
Hickman Ungerman, of Tulsa, for defendants in error.
At the conclusion of the trial in the court of common pleas, both defendants interposed a motion for a directed verdict, and the court sustained the motion of the defendant Dave Murdock and overruled the motion of the defendant Triangle Motor Company. Whereupon the issue of liability of the latter defendant was submitted to the jury, which returned a verdict in its favor. Plaintiff prosecutes an appeal from the order and judgment of the court, and on November 10, 1938, filed brief. No brief has been filed by the defendants in error and no excuse offered for failure to file same. The authorities cited in the brief reasonably sustain the allegations of error, and as stated in Osborne v. Osborne, 163 Okla. 273, 21 P.2d 1056, it is not the duty of this court to search the record to find some theory upon which to sustain the action of the trial court, but in such instance the cause will be reversed and remanded, with directions.
The cause is reversed and remanded, with directions to vacate the order and judgment entered in favor of defendants and to grant a new trial.
BAYLESS, C. J., WELCH, V. C. J., and RILEY, OSBORN, CORN, GIBSON, HURST, DAVISON, and DANNER, JJ., concur.