Opinion
No. 11007
Opinion Filed March 13, 1923.
(Syllabus.)
Appeal and Error — Review — Briefs.
Where plaintiff in error has prepared, served, and filed a brief as required by the rules of this court, and there is no brief filed and no reason given for its absence on the part of defendant in error, this court is not required to search the record to find some theory upon which the judgment below may be sustained; but, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with the prayer of the petition of plaintiff in error. Frost v. Haley, 63 Okla. 19, 161 P. 1174.
Error from District Court, Creek County; Lucien R. Wright, Judge.
Action by J. Cuno against the Oklahoma Petroleum Gasoline Company, a corporation, to recover damages for malicious prosecution. Judgment for plaintiff for $10,000, and defendant brings error. Reversed and remanded, with directions.
William F. Tucker and Hulette F. Aby, for plaintiff in error.
R.B. Thompson, Jas. F. Greason, and Fay T. Chew, for defendant in error.
This appeal is prosecuted by Oklahoma Petroleum Gasoline Company, a corporation, to reverse the judgment of the district court of Creek county entered upon a verdict of the jury awarding J. Cuno $10,000 damages for an alleged malicious prosecution instituted against J. Cuno for grand larceny. J. Cuno appears here as defendant in error.
The brief of the plaintiff in error was served on the 17th day of November, 1922. No brief has been filed by the defendant in error, nor any excuse given for failure to file same. It is a well-established rule of this court that it is not required to search the record to find some theory upon which the judgment of the trial court may be sustained; but, where the brief filed by the plaintiff in error reasonably sustains the assignments of error, the judgment will be reversed in accordance with the prayer of the petition of plaintiff in error. Frost v. Haley, 63 Okla. 19, 161 P. 1174; Security Ins. Co. v. Droke, 40 Okla. 116, 336 P. 430; J. Rosenbaum Grain Co. v. Higgins, 40 Okla. 181, 136 P. 1073; Purcell Bridge Transfer Co. v. Hine, 40 Okla. 200, 137 P. 668: First Nat. Bank of Sallisaw v. Ballard, 41 Okla. 553, 139 P. 293; De Hart Oil Co. v. Smith, 42 Okla. 201, 140 P. 1154.
Upon an examination of the brief of the plaintiff in error in this cause, it is our conclusion that the judgment of the trial court be reversed, and the cause remanded to the district court of Creek county, with directions to grant the defendant a new trial in the action. It is so ordered.
JOHNSON, V. C. J., and McNEILL, NICHOLSON, COCHRAN, and BRANSON, JJ, concur.