Opinion
No. 13288
Opinion Filed June 10, 1924. Rehearing Denied September 16, 1924.
Appeal and Error — Absence of Answer Brief — Review.
Where plaintiff in error files his brief in this court as required by rule 7 (87 Okla. xx. 215 Pac. vii) of this court, and the defendant in error fails to file briefs and assigns no reason for such failure, this court is not required to search the record to find some theory upon which the judgment of the trial court may be affirmed.
(Syllabus by Pinkham, C.)Commissioners' Opinion, Division No. 5.
Error from District Court, Mayes County; A.C. Brewster, Judge.
Action by L.C. and A.I. Milne against Mattie C. Prater and Henry S. Prater. From the judgment, plaintiffs bring error. Reversed.
Loyal J. Miller, for plaintiffs in error.
W.T. Rye, for defendants in error.
This action was commenced in the district court of Mayes county by plaintiffs in error, as plaintiffs, against the defendants in error, as defendants, to recover $2,035.21, and 10 percent. per annum from April 30, 1919, and 10 per cent. additional attorneys' fees, and costs, and foreclosing mortgage on real estate.
The defendants' answer consists of a general denial and a cross-petition admitting the execution of the note and mortgage sued on, and further alleges that by reason of the matters and things set out in the said answer the rate of interest charged, reserved, received, and collected by the plaintiffs against the defendants is usurious, and alleged that they are entitled to judgment in a sum twice the amount of said usurious interest.
Judgment was rendered in favor of the plaintiffs and against the defendants on June 23, 1919, for $2,050.30, and 10 per cent. from that date and $160 attorneys' fees declaring the same a first lien on the premises described and foreclosing the mortgage and ordering the property sold.
On June 24 counsel for defendants moved to set aside the said judgment and decree and said motion was sustained, and a new trial granted.
On the second trial of the cause the jury returned a verdict in favor of the plaintiffs in the sum of $1,027.92.
Motion for new trial on the part of the plaintiffs was overruled, and judgment rendered by the court in accordance with the verdict of the jury.
Upon appeal to this court plaintiffs assign as error, among other assignments that the court erred in rendering judgment on the said verdict and in the amount for which the same was rendered for the reason that same was too small and not supported by the evidence of defendants in error and was contrary to the evidence.
Plaintiffs have filed their brief herein as required by the rules of this court, and defendants have neither filed briefs nor advanced any reason for their neglect or failure to file the same.
"The failure of defendants in error to appear or file any brief must be taken as a confession of the alleged errors, at least sufficient to warrant a reversal of the Judgment." Nettograph Machine Co. v. Brown, 19 Okla. 77, 91 P. 849.
After an examination of the brief of plaintiffs, we think it reasonably sustains the assignments of error set forth therein.
We think the judgment of the district court of Mayes county should be reversed, and this cause remanded, with instructions to grant a new trial.
By the Court: It is so ordered.