Opinion
No. 12086
Opinion Filed October 9, 1923. Rehearing Denied November 13, 1923.
(Syllabus.)
Appeal and Error — Failure of Defendant in Error to File Brief — Reversal.
Where the plaintiff in error has duly filed and served brief in compliance with the rule of the Supreme Court, and defendant has neither filed brief nor offered excuse for failure so to do, the Supreme Court will not search the record to find some theory upon which the judgment may be sustained; but where the brief filed appears reasonably to sustain any assignment of prejudicial error, the judgment will be reversed.
Error from District Court, Coal County; J.H. Linebaugh, Judge.
Action by the First National Bank of Coalgate against J.H. Morgan. Judgment for plaintiff, and from order overruling motion to vacate judgment, defendant brings error. Reversed and remanded.
C.F. Green and L.H. Green, for plaintiff in error.
C.E.B. Cutler and George Trice, for defendants in error.
This is an appeal from the action of the district court of Coal county in overruling and denying motion of plaintiff in error to vacate a judgment. The action originated between the First National Bank of Coalgate, as plaintiff, and J.H. Morgan, as defendant.
The record discloses that during the year 1911, the plaintiff in error, J.H. Morgan, became indebted to the First National Bank of Coalgate; that he owned in that county about 260 acres of land, and after having contracted this indebtedness he left the county, sometime in 1912, without paying same and that thereafter, on or about the 21st day of April, 1923, the bank filed its action in the district court of Coal county against Morgan to recover upon said indebtedness, and at the same time sued out an attachment against the land in question. Thereafter, the case was tried and judgment was rendered for the plaintiff upon said note and sustaining said attachment. Order of sale was issued to the sheriff of Coal county and the land sold to Byrne Statler, one of the defendants in error, to satisfy said judgment and costs. Morgan returned to Coal county in 1919, and finding that his farm had been sold, and also finding certain alleged errors in the proceedings of the court in selling said farm, filed a motion to vacate the judgment on the ground that the same was void. The trial court overruled said motion to vacate said judgment, and the defendant Morgan has perfected this appeal.
The plaintiff in error, J.H. Morgan, makes numerous assignments of error for reversal of the action of the lower court. Plaintiff in error filed his brief herein on June 29, 1923. No brief has been filed by the defendants in error, and no extension of time given to file the same, and no request for an extension of time to file brief, and no reason assigned why brief has not been filed.
The following rule has been announced by this court in numerous decisions:
"When the plaintiff in error has duly filed and served brief in compliance with the rules of this court, and defendant has neither filed brief nor offered excuse for failure so to do, this court will not search the record to find some theory upon which the judgment may be sustained; but where the brief filed appears reasonably to sustain any assignment of prejudicial error, the judgment will be reversed." Butte et al. v. Routh et al., 66 Okla. 320, 169 P. 891.
Following this rule, the judgment of the trial court in this cause is reversed, and the case remanded to the trial court.
JOHNSON, C. J., McNEILL, V. C. J., and KANE, KENNAMER, NICHOLSON, COCHRAN, and BRANSON, JJ., concur.