Opinion
No. 20802
Opinion Filed January 21, 1930.
(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. City National Bank v. Coatney et al., 122 Okla. 233, 253 P. 481.
Error from District Court, Garfield County; J.W. Bird, Judge.
Action by Esther Nehring against J.B. Ferguson. From the judgment of the trial court sustaining the defendant's motion to dismiss plaintiff's action, plaintiff appeals. Reversed and remanded.
J.Z. Werby, for plaintiff in error.
H.C. Kirkendall, for defendant in error.
This is an appeal from a judgment of the district court of Garfield county. The plaintiff in error, plaintiff below, in due time served and filed her brief in full compliance with the rules of this court, but the defendant in error has wholly failed to file any brief, pleading, or other instrument in said cause on appeal, nor has he offered any excuse for his failure to do so.
Under this condition of the record this cause comes within the rule announced in the case of City National Bank v. Coatney et al., 122 Okla. 233, 253 P. 481, and the rule therein announced is applied in this cause.
In this case the petition in error prays that the judgment and order of the trial court be set aside and held for naught and that judgment be rendered in favor of the plaintiff in error restoring plaintiff in error to all rights of which she has been deprived by reason of the judgment of said court, and we find upon examination of authorities cited by plaintiff in error they reaonably support the contention of plaintiff, and therefore reverse the judgment of the lower court and direct it to vacate its order and judgment dismissing plaintiff's cause of action and to enter an order reinstating plaintiff's cause of action and deny the motion of defendant to strike the amended petition of the plaintiff.
Note. — See "Appeal and Error," 3 C. J. § 1607, p. 1447, n. 46.