Opinion
No. 34205.
December 12, 1950.
(Syllabus.)
APPEAL AND ERROR — Reversal — Failure of defendant in error to file brief. Where plaintiff in error has served and filed brief but 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 trial court may be sustained, but may, where the authorities in the brief filed appear reasonably to sustain the assignments of error, reverse the cause with directions.
Appeal from District Court, McCurtain County; Howard Phillips, Judge.
Proceeding by State of Oklahoma ex rel. I.C. Sprague, County Attorney of McCurtain County, to confiscate a slot machine. From a judgment of the trial court denying confiscation, relator appeals. Reversed and remanded, with directions.
I.C. Sprague, Co. Atty., McCurtain County, of Idabel, for plaintiff in error.
Ed Shipp, of Idabel, for defendant in error.
I.C. Sprague, county attorney, as relator, brought a proceeding in the name of the State of Oklahoma to confiscate a pin ball machine styled "Nevada".
Buck Graves, Ben Williams, and the owner or owners of the pin ball machine were notified of the application to confiscate and Buck Graves filed an answer claiming ownership of the machine.
Following a proceeding to determine the issue involved, the trial judge entered an order denying confiscation and further ordering delivery of the possession of said pin ball machine styled "Nevada" to Buck Graves, intervener.
The relator has duly perfected the appeal and, on December 7, 1949, filed a brief. The authorities therein cited reasonably support the allegations of error. Intervener, Buck Graves, has filed no brief and has offered no excuse for such failure. Under such circumstances, as stated in Gooldy v. Hines, 186 Okla. 583, 99 P.2d 498, it is not the duty of this court to search the record for some theory upon which to sustain the action of the trial court but the cause will be reversed and remanded with directions.
The cause is reversed and remanded, with directions to the trial court to vacate its order in favor of intervener, Buck Graves, and to enter a judgment of confiscation in accordance with the prayer of the petition in error.
DAVISON, C.J., ARNOLD, V.C.J., and CORN, GIBSON, LUTTRELL, HALLEY, JOHNSON, and O'NEAL, JJ., concur.