Opinion
No. 24152
March 13, 1934.
(Syllabus.)
Appeal and Error — Review — Failure of Defendant in Error to File Brief — Reversal for New Trial.
Where plaintiff in error has served and filed brief, and the defendant in error has failed to do so or offer any excuse for such failure, and the authorities in the brief, together with the record, support a reversal of the cause, this court may, at its discretion, reverse the cause, with directions to grant a new trial. Chicago, R.I. P. Ry. Co. v. Weaver, 67 Okla. 293, 171 P. 34; State ex rel. v. Parrish, 114 Okla. 239, 246 P. 1117.
Appeal from District Court, Beckham, County; John O. Maberry, Judge.
Action by W.O. Horr against H.B. Gibbins. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.
R.N. Linville, for plaintiff in error.
Leo J. Canavan, for defendant in error.
On the 28th day of April, 1932, a judgment was rendered in favor of the plaintiff, defendant in error herein, and on the 10th day of October, 1932, H.B. Gibbins prosecuted his appeal from that judgment, and on the 2nd day of December, 1932, filed his brief herein. The defendant in error has filed no brief and has offered no excuse for his failure to do so.
Upon the authority of the opinions of this court many times decided, it is not the duty of this court to search the record for some theory upon which to sustain the judgment of the lower court, and the cause is therefore reversed and remanded, with directions to the trial court to set aside the order and judgment entered and grant a new trial upon the thirteenth assignment of error in the petition in error, wherein it is alleged that the trial court erred in rendering a default judgment in said cause when there was an answer and cross-petition on file and a reply thereto pending for trial and the cause not having been regularly set for hearing by order of the court.