Opinion
No. 6947
Opinion Filed April 11, 1916.
APPEAL AND ERROR — Briefs — Effect of Failure to File. where plaintiff in error has prepared served, and filed it brief as required by the rules of this court, and there is no brief filed and no reason given for its absence on the part of defendant in error, this court is not required to search the 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 judgment in accordance with the prayer of the petition of plaintiff in error.
(Syllabus by the Court.)
Error from District Court, Washington County; R.H. Hudson, Judge.
Action by A.F. McCaleb against G.R. McKinley. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with directions to overrule demurrer to petition.
Norman Barker, for plaintiff in error.
This was a suit, commenced by the plaintiff in error, plaintiff below, against the defendant in error, defendant below, for the purpose of having the latter declared a trustee for the former in a certain real estate transaction. The court below sustained a general demurrer to the petition filed by the plaintiff, and it is this action of the trial court we are called upon to review.
The petition is very long and somewhat involved, but it reasonably tends to disclose substantially the following facts: The plaintiff and one Morse entered into an agreement with Cloud, the owner of the land, to purchase the same at a stipulated price. Not being prepared to finance the transaction, they called upon the defendant, a banker, and entered into an oral agreement with him, whereby the banker agreed with plaintiff and Morse that, if said plaintiff and Morse would agree to place the legal title to said real estate in said defendant as trustee, he would advance the purchase money therefor, less a certain amount theretofore paid by said plaintiff, and upon being reimbursed would execute deeds to them according to their respective interests; that in pursuance of said agreement said deed of conveyance was made by said Cloud direct to the defendant, as trustee, to hold the said lands as agent and trustee on behalf of said Morse and said plaintiff; that their respective interests therein should be as follows: A.F. McCaleb, the plaintiff herein, an undivided one-third interest; H.M. Morse, an undivided one-third interest; and G.R. McKinley, the defendant, an undivided one-third interest. It was further alleged in substance that said plaintiff, knowing said defendant to be a banker, and believing him to be a man of integrity and honor, and that he would faithfully fulfill his trust, was led to and did confide his property to him; that it was agreed that the said G.R. McKinley was to receive interest for his said advancement at the rate of ten per cent. per annum until he was fully paid by plaintiff and said Morse, the amount of money so advanced. The petition then alleges performance or tender of performance on the part of the plaintiff and Morse, and refusal to perform on the part of the defendant, and prays for relief as above indicated.
The defendant in error has not employed counsel to represent him in this court, and we therefore are notadvised as to the precise ground upon which the trial court sustained the demurrer to the petition. It seems reasonably clear to us, from the authorities cited by counsel for plaintiff in error, that the demurrer to the petition ought to have been overruled. Cases cited by counsel which seem to sustain this conclusion are as follows: Rose v. Hayden, 35 Kan. 106, 10 P. 554, 57 Am. Rep. 145; Hayden v. Dannenberg, 42 Okla. 776, 143 P. 859; Thompson v. McKee, 43 Okla. 243, 142 P. 755, L. R. A. 1915A, 521; Franklin v. Colley, 10 Kan. 261; Weekly v. Ellis, 30 Kan. 507, 2 P. 96. However, we do not feel called upon to make an extended independent investigation of the authorities for the purpose of finding a theory upon which the action of the trial court may be sustained. The defendant in error is a banker, and doubtless a man of means, well able to employ counsel to assist the court in investigating the questions presented for review, if he had any confidence in the justice of his cause. It has many times been held by this court that:
"Where plaintiff in error has prepared, served, and filed a brief as required by the rules of this court, and there is no brief filed and no reason given for its absence on the part of defendant in error, 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 judgment in accordance with the prayer of the petition of plaintiff in error."
Butler v. McSpadden, 25 Okla. 465, 107 P. 170; Butler v. Stinson, 26 Okla. 216, 108 P. 1103; M., K. T. Ry. Co. v. Long, 27 Okla. 456, 112 P. 991, and Beaver v. Oklahoma State Loan Co., 30 Okla. 585, 120 P. 943, are a few of the cases so holding.
For the reason stated, the judgment of the court below is reversed, and the cause remanded, with directions to overrule the demurrer to the petition.
All the Justices concur.