Opinion
No. 32550.
October 21, 1947.
(Syllabus.)
APPEAL AND ERROR — Failure of defendant in error to file brief — Reversal.
Where plaintiff in error has served and filed brief, but the defendant in error has neither filed 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 cited in the brief filed appear reasonably to sustain the assignments of error, reverse the cause, with directions.
Appeal from District Court, Pottawatomie County; Kenneth Jarrett, Judge.
Action by Earl Timmons against Ira Lee Keys to foreclose a lien. From judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.
Van H. Albertson, of Shawnee, for plaintiff in error.
Wm. M. Cutlip, of Shawnee, for defendant in error.
Plaintiff has appealed from a judgment entered against him in the trial court and on May 1, 1946, he filed his brief. The authorities therein cited reasonably sustain the allegations of error. Defendant has filed no brief and has offered no excuse for such failure. Under such circumstances, as stated in Durham v. Brown, 164 Okla. 139, 24 P.2d 295, 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 this court may reverse and remand the cause, with directions.
The cause is reversed and remanded, with directions to the trial court to vacate the judgment rendered for the defendant and enter judgment for the plaintiff foreclosing his lien and to fix a reasonable attorney's fee for plaintiff.
HURST, C.J., DAVISON, V.C.J., and RILEY, BAYLESS, WELCH, CORN, GIBSON, and LUTTRELL, JJ., concur.