Opinion
No. 1520
Opinion Filed March 12, 1912.
APPEAL AND ERROR — Disposition of Cause — Reversal — Grounds. Where counsel for plaintiff in error, in conformity with the rules of this court, has prepared, served, and filed a brief, in which, with other contentions, it is insisted that the judgment and verdict appealed from are not reasonably supported by the evidence, and there is no brief filed, and no reason given for its absence, on the part of the defendant in error, this court is not required to search the record to find some theory upon which the judgment below may be sustained; but, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with the prayer of the petition of plaintiff in error.
(Syllabus by the Court.)
Error from Johnston County Court; Nick Wolfe, Judge.
Action by V. B. Blair against the First National Bank of Tishomingo. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions.
Horton Smith and S.C. Treadwell, for plaintiff in error.
This was an action, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, to recover the penalty prescribed by the federal statute for receiving usury by a national bank. There was judgment for the plaintiff, to reverse which this proceeding in error was commenced.
Counsel for plaintiff in error have filed a voluminous brief, in which many grounds are presented to this court why the judgment of the court below should be reversed, among which it is insisted that the judgment appealed from is not reasonably supported by the evidence. There is no brief on file on behalf of the defendant in error. We have examined the contentions of counsel for plaintiff in error and the authorities cited in support thereof, and several of them seem to the court to be well taken. This court has held a great many times that, where counsel for plaintiff in error, in conformity with the rules of this court, has prepared, served and filed a brief, in which, with other contentions, it is insisted that the judgment and verdict appealed from are not reasonably supported by the evidence, and there is no brief filed, and no reason given for its absence, on the part of the defendant in error, this court is not required to search the record to find some theory upon which the judgment below may be sustained; but, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with the prayer of the petition of plaintiff in error.
Following those cases, the judgment of the court below is reversed, and the cause remanded, with directions to grant a new trial.
TURNER, C. J., and HAYES and DUNN, JJ., concur; WILLIAMS, J., absent, and not participating.