Opinion
No. 12332
Opinion Filed May 20, 1924.
Appeal and Error — Absence of Answer Brief — Reversal.
Where the plaintiff in error has, in compliance with the rules of the court, served and filed his brief, but the defendant in error has neither filed nor offered an excuse for his failure to file brief, the court is not required to search the records to find a theory upon which a judgment may be sustained, and may reverse the case in accordance with the prayer of plaintiff in error, if the brief filed appears reasonably to sustain such action.
(Syllabus by Thompson, C.)Commissioners' Opinion, Division No. 5.
Error from District Court, Pawnee County; Redmond S. Cole, Judge.
Action by Sherman Keller against Annie Keller for divorce. Judgment for plaintiff. Defendant brings error. Reversed and remanded.
E.R. McNeill and Chester H. Lowry, for plaintiff in error.
McCollum McCollum, for defendant in error.
This action was commenced in the district court of Pawnee county, Okla., by Sherman Keller, defendant in error, plaintiff below, against Annie Keller, plaintiff in error, defendant, below, for divorce.
Upon trial of the cause, on the petition of defendant in error and on the cross-petition of plaintiff in error, the court rendered judgment in favor of the defendant in error, entering a decree in favor of the defendant in error for divorce and making certain findings as to payment of certain attorneys fees and a certain amount to plaintiff in error, from which judgment Annie Keller, plaintiff in error, appealed to this court.
Attorneys for plaintiff in error prepared and filed brief in support of the appeal, which was duly served upon the attorneys for defendant in error. The defendant in error has failed to file any answer brief, although the time has expired for filing the same, under the rules of this court, and has given no reason or excuse for failure to file said brief, under the rules and orders of this court, and no extension of time, in which to file brief has been requested or granted and the cause having been regularly assigned to Commissioners' Division No. 5, for an opinion, upon an examination of the entire record and the brief of plaintiff in error, it is the opinion of the court that the brief of plaintiff in error appears to reasonably support the assignments of error, and in this state of the case, it is not the duty of the, court to search the record with a view of ascertaining some possible theory upon which the judgment may be affirmed.
The contention of plaintiff in error, under the assignments of error and under the motion for new trial and the petition in error, seems to be supported by the authorities cited in the brief of plaintiff in error. Having reached this conclusion, it is, therefore, our opinion that the decision of the lower court should be and is hereby reversed and remanded, with direction to the district court of Pawnee county to grant a new trial.
By the Court: It is so ordered.