CARRITHERS v. STATE ex rel. WALLACE

CARRITHERS v. STATE ex rel. WALLACE
1924 OK 694
229 P. 215
100 Okla. 196
Case Number: 14541
Decided: 09/16/1924
Supreme Court of Oklahoma

CARRITHERS
v.
STATE ex rel. WALLACE. Co. Atty.

Syllabus

¶0 Appeal and Error--Absence of Answer Brief--Reversal.
Where the plaintiff in error has, in compliance with the rules of the court, served and filed his brief, but the defendant in error has neither filed nor offered an excuse for his failure to file brief, the court is not required to search the records to find a theory upon which a judgment may be sustained, and may reverse the case in accordance with the prayer of plaintiff in error, if the brief filed appears reasonably to sustain such action.

Commissioners' Opinion, Division No. 5.

Error from District Court, Creek County; Fred A. Speakman Judge.

Action by the State of Oklahoma ex rel. Tom Wallace, County Attorney of Creek County, Okla., against Jim Carrithers for an injunction. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

R. K. Robertson and Creekmore Wallace, for plaintiff in error.
Tom Wallace, Co. Atty., for the State.

THOMPSON, C.

¶1 This action was commenced in the district court of Creek county, Okla., by the state of Oklahoma ex tel. Tom Wallace, county attorney of Creek county. Okla., defendant in error, plaintiff below, against Jim Carrithers, plaintiff in error, defendant below, under the prohibition laws of the state of Oklahoma, praying for an injunction closing up the Star Drug Stove in Sapulpa, Okla., for violating the prohibition laws by selling intoxicating liquors.The defendant answered by way of general denial.

¶2 Upon trial the court rendered judgment in favor of the plaintiff for an injunction, ordering the place of business of the defendant closed.

¶3 The cause comes to this court regularly upon appeal by defendant from said Judgment.Attorneys for defendant prepared and filed their brief in support of their appeal, which was duly served upon the plaintiff on the 4th day of September, 1923.The plaintiff has failed to file any answer brief, although the time has expired for filing the same under the rules of this court, and has given no reason or excuse for failure to file said brief under the orders of this court, and no extension of time has been requested or granted to the plaintiff to file said brief.The cause having been regularly assigned to Commissioners' Division No. 5, for an opinion, upon an examination of the entire record and the brief of defendant and petition in error, it is the opinion of the court that the brief of defendant appears to reasonably support the assignments of error and in this state it is not the duty of the court to search the record with a view of ascertaining some possible theory upon which the judgment may be affirmed.

¶4 The contention of defendant, under the assignments of error, motion for new trial and petition in error, seems to be supported by the authorities cited in the brief of defendant. Having reached this conclusion, it is, therefore, our opinion that the decision of the lower court should be and is hereby reversed and remanded, with direction to the district court of Creek county to grant a new trial.