Opinion
No. 10830
Opinion Filed September 26, 1922.
(Syllabus.)
Appeal and Error — Failure of Defendant in Error to File Brief — Reversal.
Where plaintiff in error has served and filed his brief in compliance with the rules of this court, and the defendants in error have neither filed a brief nor offered any excuse for such failure, 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 to reasonably sustain the assignments of error reverse the case in accordance with the prayer of the petition in error.
Error from District Court, Craig County; A.C. Brewster, Judge.
Ben D. Pennington, prosecuting witness, was taxed with the costs after discharge of the accused, Dick Leforce, and Pennington appeals, making Leforce and the State defendants in error. Reversed and remanded, with directions.
W.H. Kornegay, for plaintiff in error.
This cause originated before a justice of the peace in Craig county, by the plaintiff in error filing a complaint charging the defendant in error Dick Leforce with committing a felonious assault upon the plaintiff in error. The county attorney of said county, after an examination of the facts, recommended that a warrant issue. Upon the preliminary examination the justice of the peace discharged the defendant and held that the prosecution was malicious and without probable cause, and taxed the costs of said action, amounting to the sum of $63.20, to the plaintiff in error. The cause was appealed to the district court where, on the motion of the state, the appeal was dismissed on the ground that the court was without jurisdictions. From this judgment of dismissal the plaintiff in error has appealed to this court.
Plaintiff in error has served and filed his brief, but the defendants in error have filed no brief, although the time for so doing has expired. It has been repeatedly held that when the plaintiff in error has served and filed his 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, the court is not required to search the record to find some theory upon which the judgment of the court below may be sustained, but may, when the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the case in accordance with the prayer of the petition in error, Chicago, R.I. P. Ry, Co. v. Weaver, 67 Okla. 293, 171 P. 34; Lawton Nat. Bank v. Ulrich et al., 81 Okla. 159, 197 P. 167.
As the brief of the plaintiff in error and the authorities cited therein appear reasonably to sustain the assignments of error, the judgment of the trial court is reversed and the cause remanded, with directions to set aside the judgment and dismiss the proceedings against the plaintiff in error.
KANE, JOHNSON, McNEILL, MILLER, and KENNAMER, JJ., concur.