Opinion
No. 44021.
November 17, 1970.
Appeal from the District Court of Muskogee County; John Porter, Jr., Trial Judge.
Action to vacate or modify order by Commissioner of Public Safety suspending for a fixed period the motor vehicle operator's license of defendant in error, Thomas Patrick Sampson. From judgment of district court modifying the suspension order, State of Oklahoma ex rel. Department of Public Safety appeals. Reversed and remanded with directions.
W. Roger Webb, Oklahoma City, for plaintiff in error.
Michael Norman, James Conrad, Muskogee, for defendant in error.
The State of Oklahoma ex rel. Department of Public Safety lodged an appeal from a final order of the district court vacating a departmental order. The departmental order suspended for six months the operator's license of defendant in error and compelled surrender for the same period the indicia of registration of his motor vehicle, based upon the command of the statute 47 O.S. 1961 § 6-205[ 47-6-205]. The judgment of the trial court vacated the departmental order of suspension and directed immediate restoration of the operator license and the indicia of registration.
Brief in chief by plaintiff in error was filed April 3, 1970. Answer brief by defendant in error was due forty days thereafter. Rule 1.28, Rules on Civil Appeals, 12 O.S.Supp. 1970 following § 993[ 12-993]. Civil appeal rules govern appeals brought under 47 O.S.Supp. 1969 § 6-211[ 47-6-211] except insofar as the rules may contravene any provision of a valid statute, in which instance the statute prevails.
No answer brief by defendant in error has been submitted and that omission is unexcused by the Court. Plaintiff in error has moved for summary reversal on the brief in chief. The order of the Court entered September 22, 1970, directing response by defendant in error to that motion has failed to elicit said response.
Where a defendant in error fails to file an answer brief which omission is unexcused, and the authorities and argument in the brief in chief by plaintiff in error reasonably support the allegations of error in the petition in error, the cause will be reversed and remanded with directions. Anderson v. State ex rel. Burnett et al. (1954), Okla., 272 P.2d 405. The allegations of error being reasonably well supported by the brief of plaintiff in error, the cause is reversed and remanded to the trial court with directions to vacate the judgment entered January 2, 1970, cancelling and setting aside the departmental order of suspension by the State of Oklahoma Department of Public Safety, and to reinstate of record the departmental order of suspension for the duration of the ordered suspension less the period of actual suspension.
All of the Justices concur.