ILLINOIS LIFE INSURANCE CO. v. CUNNINGHAM et al.

ILLINOIS LIFE INSURANCE CO. v. CUNNINGHAM et al.
1932 OK 343
11 P.2d 196
157 Okla. 93
Case Number: 21816
Decided: 05/03/1932
Supreme Court of Oklahoma

ILLINOIS LIFE INSURANCE CO.
v.
CUNNINGHAM et al.

Syllabus

¶0 Appeal and Error--Reversal in Absence of Answer Brief.
Where plaintiff in error has served and filed its brief in compliance with the rules of this court, and the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, this 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 authorities cited in the brief filed, appear reasonably to sustain the assignments of error, reverse the cause, with directions, in accordance with the prayer of the petition in error.

Appeal from District Court, Coal County; P. L. Gassaway, Judge.

Illinois Life Insurance Company, a corporation, obtained a personal judgment against Grace B. Cunningham on notes secured by real estate mortgage, and further judgment against Grace B. Cunningham and Augustus Cunningham, E. L. Spencer, et al., foreclosing its mortgage as security for the payment of the said judgment indebtedness. After sheriff's sale of said property plaintiff filed application to have funds in the hands of the receiver applied to the taxes and deficiency judgment, and from the order and judgment of the court denying the application, and ordering said funds paid to the defendant Augustus Cunningham, plaintiff brings error. Reversed and remanded, with directions.

McKeown & Green, Charles E. Bush, and W. D. Calkins, for plaintiff in error.
Ramsey & Howell and Ralls & Ralls, for defendants in error.

PER CURIAM.

¶1 In an action brought by Illinois Life Insurance Company against Augustus Cunningham and Grace B. Cunningham, E. L. Spencer et al., in the district court of Coal county, Okla., judgment for debt was rendered in favor of the plaintiff and against the defendant Grace B. Cunningham, on a note, and further judgment against all of the defendants, foreclosing a first mortgage on certain real estate given as security for the payment of said indebtedness; the judgment remaining unpaid, in due time, the real estate and premises described in said mortgage and the judgment were sold at sheriff's sale, and after confirmation of sale and execution of sheriff's deed, plaintiff filed application to have funds in the hands of the receiver applied to the payment of the taxes on the real estate and to the balance remaining due on the judgment. From an order of the court denying the application of the plaintiff, and its order and judgment directing that the funds in the hands of the said receiver be paid to Augustus Cunningham, the plaintiff duly perfected appeal to this court by filing petition in error with case-made on October 15, 1930.

¶2 Plaintiff in error, in compliance with the rules and order of this court, filed brief in support of the assignments of error set out in the petition in error filed herein. The defendants in error, nor any of them, have filed answer brief nor any other pleading or instrument in this cause on appeal, neither have they offered any excuse for their failure to do so. This court has repeatedly held:

"Where plaintiff in error has served and filed its brief in compliance with the rules of this court, and the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, this 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 authorities cited in the brief filed, appear reasonably to sustain the assignments of error, reverse the cause, with directions, in accordance with the prayer of the petition in error." City National Bank v. Coatney, 122 Okla. 233, 253 P. 481.