Opinion
No. 20622
Opinion Filed November 10, 1931.
(Syllabus.)
Appeal and Error — Reversal — Failure of Defendant in Error to File 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, 122 Okla. 233, 253 P. 481.
Appeal from District Court, Okmulgee County; James M. Hays, Judge.
Action by B. Olson against Mose Grayson et al. From judgment rendered in favor of defendants, plaintiff brings error. Reversed and remanded, with directions.
Twyford Smith, Leo G. Mann, and G.E. Cassity, for plaintiff in error.
Pitchford Pitchford, G.L. Bynum, and R.S. Gamble, for defendants in error.
This is an appeal from the judgment of the district court of Okmulgee county, Okla., in favor of the defendants in error, Mose Grayson et al., sustaining the demurrer of the defendants to the evidence offered by the plaintiff and dismissing plaintiff's cause of action.
Plaintiff in error in due time and on January 9, 1930, served and filed brief in full compliance with the rules of this court, but the defendants in error have wholly failed to file answer brief, pleading, or any other instrument in said cause on appeal, within the time provided by the rules of this court, or within any extension of time granted by this court, neither have the defendants in error offered any excuse for their failure to do so. C.A. Warner, one of the defendants in error, on September 9, 1929, filed confession of error herein.
In this case the petition in error prays that the judgment of the trial court be reversed and the cause remanded to the lower court, with directions to render judgment for the plaintiff in error. Plaintiff in error attached to the petition in error a sworn statement of costs of the case-made in the amount of $20.
We find upon examination of the authorities cited by plaintiff in error that they reasonably support the contention of the plaintiff in error with respect to alternative second cause of action set out in the original petition and the supplemental petition thereto, as filed in the trial court, and we therefore reverse the judgment of the lower court and direct it to vacate its former judgment sustaining the demurrer of the defendants in error and dismissing plaintiff's cause of action, and that said cause of action be reinstated and judgment rendered in favor of plaintiff in error on the alternative second cause of action and supplemental petition as prayed for.
Note. — See under (1) 2 R. C. L. 176; R. C. L. Perm. Supp. p. 360.