Opinion
No. 1136
Opinion Filed October 10, 1911.
1. APPEAL AND ERROR — Failure to File Brief — Reversal. Where plaintiff in error has completed his record and filed it in this court, and has served and filed a brief in compliance with the rules of the court, and defendant in error has 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 may be sustained; and, 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.
2. REVIEW OF EVIDENCE. Evidence examined, and held insufficient to sustain verdict.
(Syllabus by Robertson, C.)
Error from Coal County Court; R. H. Wells, Judge.
Action by Joplin Rogers and others against D. M. Phillips. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.
T. F. McMechan and George P. Glaze, for plaintiff in error.
This case was filed in this court on October 13, 1909. Plaintiff in error filed his brief July 1, 1910. Fifteen months have elapsed, and defendant in error has filed no brief in support of the judgment, nor has any reason been assigned for not doing so. Under the authority of the rule announced in Butler v. McSpadden, 25 Okla. 465, 107 P. 170; Ellis v. Outler, 25 Okla. 469, 106 P. 957; Buckner v. Bank, 25 Okla. 472, 106 P. 959; Reeves Co. v. Brennan, 25 Okla. 544, 106 P. 959; Sharpleigh Hwd. Co. v. Pritchard, 25 Okla. 808, 108 P. 260; School District No. 39 v. Shelton, 26 Okla. 229, 109 P. 67, 128 Am. St. Rep. 962; Bank of Grove v. Dennis, et al., ante, 118 P. 570, and Doyle et al. v. School District No. 38, Noble County, et al., ante, 118 P. 386, we are warranted in reversing this case.
However, in addition to the above reason, we have very carefully examined the entire record, and find that the assignments of error raised in the brief of plaintiff in error require the reversal of the case, for the reason that the verdict of the jury is not sustained by the evidence. The testimony of Mrs. Rogers as to what the trunk contained (Record, pp. 17, 18), and her own figures, place the value thereof at $281.40, which does not approach the verdict of $408. The jury evidently did not take the items which were testified to as being in the trunk as the basis of the verdict, as we find, in comparing the testimony with the exhibit of the petition, that $55 of the goods listed in the exhibit were not testified to at all. We also find that the articles listed in the exhibit as being worth $55 were not mentioned in the testimony; that articles mentioned in the testimony on page 18 of the record, and to which no value was fixed by testimony, are listed in the exhibit to the amount of $185, and Mrs. Rogers in her testimony made the value of the alleged lost articles less than the exhibit value by $71.60. The jury found their verdict for the plaintiff in the sum of $408, the exact amount as itemized in the exhibit to the petition. After a careful perusal of the entire record, it seems that the verdict of the jury was based upon the allegations of the petition, certainly not upon the evidence. We believe that the ends of justice will be best subserved by a new trial, where the evils mentioned may possibly be corrected. The verdict is not sustained by the evidence.
The judgment of the county court of Coal county should be reversed, and the cause remanded, with directions to grant a new trial.
By the Court: It is so ordered.
All the Justices concur.