Opinion
No. 24898
February 12, 1935.
(Syllabus)
APPEAL AND ERROR — Reversal Where Defendant in Error Fails to File Brief.
Where plaintiff in error has served and filed its brief in compliance with the rules of court, and 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, Stephens County; E. L. Richardson, Judge.
Action by the J. R. Watkins Company against A. F. Holcombe and others on a contract. From a judgment for defendants, plaintiff appeals. Judgment reversed, and cause remanded, with directions.
George E. Merritt, of Sentinel, for plaintiff in error.
J. H. Long, of Duncan, for defendants in error.
This action was commenced in the district court of Stephens county by the filing of a petition against A. F. Holcombe as principal, and J. M. Holloway, J. W. Monds, and Fannie G. Monds as sureties, on a contract made to the plaintiff. The trial resulted in a judgment for the defendants, and on the 31st day of July, 1933, the plaintiff in error filed its case-made and petition in error in this court, and on the 16th day of October, 1933, filed its brief. The authorities therein reasonably support the theory of the plaintiff in error that the court committed error in rendering judgment for the defendants. The defendants in error have failed to file a brief or to offer any excuse for such failure. In O'Brien v. Cummings, 167 Okla. 7, 27 P.2d 821, this court said:
"Where plaintiff in error has served and filed its brief in compliance with the rules of court, and 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."
See, also, Missouri Pacific R. Co. v. Moore, 167 Okla. 469, 30 P.2d 671; Gibbins v. Horr, 167 Okla. 469, 30 P.2d 673.
The cause is therefore reversed and remanded, with directions to the trial court to vacate its order and judgment entered for the defendants and to enter judgment upon the pleadings for the plaintiff in accordance with the prayer of the petition in error.