Opinion
No. 31877.
July 9, 1946.
(Syllabus.)
APPEAL AND ERROR — Failure of defendant in error to file brief — Reversal.
Where plaintiff in error has served and filed brief, 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 judgment appealed from.
Appeal from District Court, Ottawa County; Wm. M. Thomas, Judge.
Injunction by W. S. Goodwin et al. against the Board of Education of School District 23, Ottawa County, et al. From a judgment sustaining demurrers to petition and dismissing the action, plaintiffs appeal. Reversed and remanded.
A.L. Commons, of Miami, for plaintiffs in error.
J.J. Smith, of Miami, for defendants in error.
This appeal is from the action of the trial court in sustaining demurrers to plaintiffs' petition and in dismissing the cause.
Plaintiffs have filed brief, but the defendants have failed in that respect, although the time for so doing has long since expired without showing of cause or excuse. In such cases it is not the duty of this court to search the record to discover some theory upon which the action and judgment of the trial court may be sustained, but this court may in its discretion reverse and remand where the authorities cited in the brief filed reasonably sustain the assignments of error. Goolby v. Hines, 186 Okla. 583, 99 P.2d 498.
Plaintiffs by their petition sought to enjoin defendants from proceeding toward annexing a part of independent school district No. 18 of Ottawa county to independent school district 23 of said county. The plaintiffs allege, ". . . the boundaries of independent school district No. 18 have remained as they now are for many years, . . ." Plaintiffs assert the following in their brief:
"The pleadings show that no part of school district 18, which had been an entity for many years, had ever been detached."
And cite independent School District No. 48, Bryan County, v. Union Graded School District No. 7, Bryan County, 195 Okla. 104, 156 P.2d 609, as sustaining their position.
We think the petition and the reasonable inferences to be drawn therefrom support the above-quoted statement contained in the brief, and that it is fair to infer therefrom that the part of district 18 sought to be annexed had never been a part of district 23.
In the Bryan County Case, supra, we held:
"Only an entire school district may be annexed to another district or districts under the provisions of Senate Bill No. 5, chapter 24, Session Laws 1943, 70 O.S.Supp. 1943, sections 891.1891.11, except as provided by section 10 thereof which authorizes annexation of a part of a district to the district from which it had been detached in 1941. 1942 or 1943, under Senate Bill No. 81, chapter 24, 1941 Session Laws, 70 O.S. 1941, sections 890.1-890.8."
The authorities cited reasonably sustain the assignments of error, and the judgment appealed from is reversed and the cause remanded.
GIBSON, C.J., HURST, V.C.J., and RILEY, OSBORN, CORN, and DAVISON, JJ., concur.