NEWTON v. STATE

NEWTON v. STATE
1923 OK 878
219 P. 899
93 Okla. 137
Case Number: 12300
Decided: 10/30/1923
Supreme Court of Oklahoma

NEWTON
v.
STATE et al.

Syllabus

¶0 Appeal and Error--Failure of Defendant in Error to File Brief--Review. Where the plaintiff in error files his brief as required by Rule 7 of this court, and the defendant neither files a brief nor gives any reason or excuse for not filing the same and the brief of the plaintiff in error appears to reasonably support the assignments of error, it is not the duty of the Supreme Court to search the record with a view of ascertaining some possible theory on which the judgment may be affirmed.

S. B. Garrett, for plaintiff in error.

RUTH, C.

¶1 This action was founded upon the seizure of a Ford car by the sheriff of Jackson county, who made his return showing the car was used to transport intoxicating liquors, C. C. Newton filed his petition in the nature of a plea of intervention and upon a trial to the court evidence was introduced by both the state and the intervener, and upon conclusion of all the evidence the court rendered judgment confiscating the car and ordering it sold according to law. The intervener attempts to bring error and have the cause reviewed by this court and filet his case-made and brief. The state has not seen fit to favor us with a brief in this case, but under Rule 7 of this court, the court may affirm or reverse the judgment of the trial court. Russell & Washington v. Robertson, 82 Okla. 283, 200 P. 150; Incorporated Town of Kusa v. Bouggous, 82 Okla. 204, 200 P. 154, and others.

¶2 "The question of jurisdiction is primary and fundamental in every case, and cannot be waived by the parties or overlooked by the court. It is the bounden duty of the court to examine into its jurisdiction, whether raised by any party or not, and sui sponte, to determine its own jurisdiction." Howard v. Arkansaw, 59 Okla. 206, 158 P. 437.

¶3 The record in this case discloses that after both plaintiff and defendant rested, the court rendered judgment, and intervener gave notice of appeal to the Supreme Court. The record does not disclose that any motion for a new trial was filed, and the petition in error fails to assign as error the overruling of a motion for a new trial by the court below. For the reasons above stated, this appeal should be dismissed.