St. Paul Fire Marine Ins. Co. v. McClendon , 139 Okla. 184 ( 1929 )

This is an appeal by the St. Paul Fire Marine Insurance Company, plaintiff in error, from a judgment for $330 rendered in the district court of Roger Mills county, Okla., against said insurance company, and in favor of S.A. McClendon, defendant in error here, and the plaintiff below.

The plaintiff in error, in due time, filed its case-made in this court, and thereafter, to wit, on February 5, 1927, filed herein its brief, and there appears in the cause an acknowledgment in writing of service of said brief upon defendant in error by the attorneys of record for the defendant in error, which acknowledgment of service bears date of February 8, 1927, and was filed in the office of the Clerk of this court February 10, 1927. Thereafter, on March 22, 1927, the defendant in error was granted 30 days additional from that date within which to file his brief.

It appears from the record in the cause that defendant in error has wholly failed to file said brief and has offered no excuse for his failure so to do. Under this condition of the record, 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 plaintiff in error files his brief and cites authorities therein which reasonably support and sustain the assignments of error, reverse the judgment of the lower court in accordance with the prayer of the petition in error. City Nat. Bank v. Coatney, 122 Okla. 233,253 P. 481; C., R.I. P. Ry. Co. v. Weaver, 67 Okla. 293,171 P. 34; Lawton Nat. Bank v. Ulrich, 81 Okla. 159, 197 P. 167; and other cases cited in Oklahoma Three-in-One Service 1928, under paragraph 439, under the topic of "Appeal and Error."

Among other prayers, plaintiff in error prays for a new trial. We find that the authorities cited in his brief apparently support the grounds upon which he asks a new trial, and we therefore vacate the judgment of the trial court, and reverse the case, and award the plaintiff in error a new trial.

HALL, HERR, DIFFENDAFFER, and

TEEHEE (for JEFFREY, C.), Commissioners, concur.

By the Court: It is so ordered.

Note. — See "Appeal and Error," 3 C. J. § 1607, p. 1447, n. 46.