Opinion
No. 18086
Opinion Filed October 22, 1929.
(Syllabus.)
Appeal and Error — Reversal Where no Answer Brief Filed.
Where plaintiff in error has served and filed its brief in compliance with the rules of this court, and the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, this 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, in accordance with the prayer of the petition in error.
Commissioners' Opinion, Division No. 2.
Error from District Court, Roger Mills County; T.P. Clay, Judge.
Action by S.A. McClendon against the St. Paul Fire Marine Insurance Company.
Judgment for plaintiff, and defendant appeals. Reversed.
Matson Stearns and Ross Conrad, for plaintiff in error.
A.A. Brown and F.R. Blosser, for defendant in error.
This is an appeal by the St. Paul Fire Marine Insurance Company, plaintiff in error, from a judgment for $330 rendered in the district court of Roger Mills county, Okla., against said insurance company, and in favor of S.A. McClendon, defendant in error here, and the plaintiff below.
The plaintiff in error, in due time, filed its case-made in this court, and thereafter, to wit, on February 5, 1927, filed herein its brief, and there appears in the cause an acknowledgment in writing of service of said brief upon defendant in error by the attorneys of record for the defendant in error, which acknowledgment of service bears date of February 8, 1927, and was filed in the office of the Clerk of this court February 10, 1927. Thereafter, on March 22, 1927, the defendant in error was granted 30 days additional from that date within which to file his brief.
It appears from the record in the cause that defendant in error has wholly failed to file said brief and has offered no excuse for his failure so to do. Under this condition of the record, 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 plaintiff in error files his brief and cites authorities therein which reasonably support and sustain the assignments of error, reverse the judgment of the lower court in accordance with the prayer of the petition in error. City Nat. Bank v. Coatney, 122 Okla. 233, 253 P. 481; C., R.I. P. Ry. Co. v. Weaver, 67 Okla. 293, 171 P. 34; Lawton Nat. Bank v. Ulrich, 81 Okla. 159, 197 P. 167; and other cases cited in Oklahoma Three-in-One Service 1928, under paragraph 439, under the topic of "Appeal and Error."
Among other prayers, plaintiff in error prays for a new trial. We find that the authorities cited in his brief apparently support the grounds upon which he asks a new trial, and we therefore vacate the judgment of the trial court, and reverse the case, and award the plaintiff in error a new trial.
HALL, HERR, DIFFENDAFFER, and
TEEHEE (for JEFFREY, C.), Commissioners, concur.
By the Court: It is so ordered.
Note. — See "Appeal and Error," 3 C. J. § 1607, p. 1447, n. 46.