SWARTZ v. BIGBY

SWARTZ v. BIGBY
1923 OK 971
220 P. 579
93 Okla. 221
Case Number: 12231
Decided: 11/13/1923
Supreme Court of Oklahoma

SWARTZ
v.
BIGBY et al.

Syllabus

¶0 Appeal and Error--Failure to File Answer Brief--Reversal.
Where plaintiff in error has prepared, served, and filed a brief as required by the rules of this court, and the defendant in error files no answer brief, and no reason is shown why same has not been filed, and no order made granting an extension of time therefor, this court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained. Where, under the circumstances, the brief of plaintiff in error appears to reasonably sustain the assignments of error, this court may reverse the judgment in accordance with the prayer of the petition in error.

E. D. Slough, for plaintiff in error.

LOGSDON, C.

¶1 This proceeding in error was prosecuted by William Swartz against Charles H. Bigby and Frank Tanner to reverse a judgment of the district court of Carter county in favor of defendants against the plaintiff, in which plaintiff had sued to recover the sum of $ 400 and interest on a certain promissory note executed by the defendants.

¶2 Plaintiff has filed his brief in this court, but no brief has been filed by the defendants nor any excuse given for failure so to do. The records of this court do not show any extension of time granted to the defendants for filing brief nor any application therefor. It is a well- established rule of this court that it is not required to search the record to find some theory upon which the judgment of the trial court may be sustained. Under the circumstances stated, where the brief filed by the plaintiff reasonably sustains the assignments of error contained in the petition in error, the judgment will be reversed in accordance with the prayer of the petition in error. Frost v. Haley, 63 Okla. 19, 161 P. 1174; Security Ins. Co. v. Droke, 40 Okla. 116, 136 P. 430; J. Rosenbaum Grain Co. v. Higgins, 40 Okla. 181, 136 P. 1073; Purcell Bridge & Transfer Co. v. Hine, 40 Okla. 200, 137 P. 668; First Nat. Bank of Sallisaw v. Ballard, 41 Okla. 553, 139 P. 293.

¶3 After a careful examination of plaintiff's brief herein, it is concluded that the judgment of the trial court should be reversed, and the cause remanded to the district court of Carter county, with directions to grant a new trial in the action.