Opinion
No. 12508
Opinion Filed October 23, 1923.
1. Appeal and Error — Examination of Record — Reversal.
"Where the plaintiff in error has filed a brief, and the defendant in error has filed none, and has given no excuse for his failure, and upon the examination of the record it appears that the errors assigned are well founded, this court is not required to search for some theory or for some authority that might possibly save the judgment appealed from." Walker v. Robinson, 66 Okla. 57, 166 P. 1042.
(Syllabus by Shackelford, C.)Commissioners' Opinion, Division No. 4.
Error From District Court, Kiowa County; Thos. A. Edwards, Judge.
Action by J.F. Scahill against the New State Telephone Company for personal injury resulting from defendant having permitted its wire to become loosened, and hang low, resulting in plaintiff being knocked down and injured. Judgment for plaintiff and defendant appeals. Reversed, and remanded for a new trial.
Rummons Hughes, for plaintiff in error.
E.V. Rakestraw, for defendant in error.
This cause was filed in the district court of Kiowa county, on the 23rd day of February, 1920. It was tried on about the 9th of December, 1920, and final judgment entered January 31, 1921. Appeal was perfected by filing petition in error with case-made attached in this court on the 28th of July, 1921.
The brief of plaintiff in error was filed here on the 4th day of September, 1923. The appearance docket of this court shows due service of plaintiff in error's brief. Under the rules of this court, defendant in error was due to file brief here on October 4, 1923. No brief has been filed for defendant in error, no excuse has been offered why the same has not been filed, and no extension of time for filing brief has been asked or granted.
We have examined the assignment of errors in the brief of plaintiff in error, and the record upon which they are predicated, and the grounds urged for reversal seem to be well taken. Where such a situation is presented as has arisen in this case, we are not required to search the record for reasons why the judgment should be upheld, neither are we required to search for authorities in support of the judgment.
Upon the authority of Miles v. Bird, 41 Okla. 428, 138 P. 789, and Walker v. Robinson, 66 Okla. 57, 166 P. 1042, the judgment appealed from should be reversed in accordance with the prayer of the petition in error, and the cause remanded for a new trial; and we recommend that this be done.
By the Court: It is so ordered.