Opinion
No. 344
Opinion Filed January 11, 1910.
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 the defendant in error has neither filed a brief nor offered any excuse for such failure, this court is not required to search the record to find some theory upon which the judgment below may be sustained; but, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the case in accordance with the prayer of the petition of plaintiff in error.
Williams, J., dissenting in part.
(Syllabus by the Court.)
Error from District Court, Seminole County; A. T. West, Judge.
Action by David N. Buckner against the Oklahoma National Bank of Shawnee and John Cordell. Judgment for defendants, and plaintiff brings error. Reversed and remanded.
J. A. Baker, for plaintiff in error.
This case presents error from the district court of Seminole county. A demurrer was sustained by the trial court to the petition of plaintiff in error, who was plaintiff in that court. The action was dismissed, and judgment was rendered against plaintiff for the costs, to reverse which the cause is brought to this court. Counsel for plaintiff in error, in conformity with the rules of this court, has prepared, served, and filed his brief, but counsel for defendant in error have filed no brief, nor have they given any reason for its absence. We have examined the brief filed; and, as it seems to sustain counsel's contention, following a rule adopted in other cases, we decline to examine the record to ascertain if there is any possible theory upon which the judgment of the trial court can be sustained. Butler et al. v. McSpadden, ante, p. 465, 107 P. 170; Ellis et al. v. Outler et al., ante, p. 469, 106 P. 957; Aldridge et al. v. Board of Education of Stillwater, 15 Okla. 354, 82 P. 827; Nettograph Machine Company v. Brown et al., 19 Okla. 77, 91 P. 849. In the syllabus of the case of Ellis et al. v. Outlet et al., supra, the court said:
"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 the defendant in error has neither filed a brief nor offered any excuse for such failure this court is not required to search the record to find some theory upon which the judgment below may be sustained; but, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the case in accordance with the prayer of the petition of plaintiff in error."
The judgment rendered herein is accordingly reversed, and the cause remanded to the district court of Seminole county.
Kane, C. J., and Hayes and Turner, JJ., concur; Williams, J., concurs in conclusion reversing the case, but dissents as to the rule announced where no briefs are filed by defendant in error.