Opinion
No. 24376
May 8, 1934.
(Syllabus.)
Appeal and Error — Reversal in Absence of Answer Brief.
Where the plaintiff in error has served and filed its brief in compliance with the rules of court, but the defendant in error has neither filed a brief nor offered any excuse for his 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 District Court, Texas County; F. Hiner Dale, Judge.
Action by J.L. Peters against the Advance-Rumely Thresher Company. From a judgment for the plaintiff, defendant appeals. Reversed and remanded, with directions.
Rizley Sweet and Ayres, Cowan, McCorkle Fair, for plaintiff in error.
Hughes Dickson, for defendant in error.
A judgment was rendered in the court below for the plaintiff upon a petition for breach of warranty. On the 9th day of January, 1933, plaintiff in error filed its appeal herein by petition in error and case-made attached, and on the 10th day of October, 1933, filed a brief. The defendant in error has failed to file brief and has offered no excuse for such failure. This court has repeatedly held that, under such circumstances, it is not the duty of the court to search the record to find some theory upon which the judgment of the trial court may be sustained, but it may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the cause in accordance with the prayer of the petition in error. Chapman v. Taylor, 163 Okla. 274, 21 P.2d 1058; Moore v. Jefferson, 164 Okla. 270, 23 P.2d 693.
The cause is therefore reversed and remanded, with directions to vacate the order and judgment heretofore entered for the plaintiff and to enter judgment for the defendant.