Opinion
No. 22070
Opinion Filed January 24, 1933.
(Syllabus.)
Appeal and Error — Reversal — Failure to File Answer Brief.
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.
Appeal from District Court, Carter County; Asa E. Walden, Judge.
Action by Mary Anderson against C.L. Anderson for separate maintenance. From an order appointing receiver of the property of C.L. Anderson, plaintiff appeals. Reversed and remanded, with directions.
Earl Q. Gray and George S. Ramsey, for plaintiff in error.
Sigler Jackson, for defendant in error.
December 9, 1930, defendant in error, plaintiff below, filed her petition for separate maintenance, and on application January 9, 1931, the trial court appointed a receiver. On an appeal from this order defendant filed his petition in error herein and filed his brief supporting the errors therein alleged.
Subsequent to the appointment and appeal, C.L. Anderson and Mary Anderson, defendant and plaintiff, respectively, died, and revivor was filed against each of their legal representatives. No brief has ever been, filed by the legal representative of Mary Anderson and no excuse has been, offered for the failure. The authorities cited in plaintiff in error's brief reasonably tend to support the errors alleged.
Under the rule of City National Bank v. Coatney, 122 Okla. 233, 253 P. 481, this court is not required to search the record for a theory upon which to affirm the appointment of the receiver, but may reverse and remand the cause as prayed for in the petition in error. The real parties in interest having both died, there appears no reason why this cause should be continued longer, and the case is reversed and remanded, with directions to trial court to
vacate its order appointing the receiver and to dismiss the action. Note: See under (1) 2 R. C. L. 176; R. C. L. Perm. Supp. p. 360.