Opinion
No. 34872.
February 2, 1954. Rehearing Denied March 9, 1954.
Appeal from the District Court, Oklahoma County, Glen O. Morris, J.
Gilliland, Withington Shirk, Oklahoma City, for plaintiff in error.
George W. Gay, Oklahoma City, for defendant in error.
Plaintiff in error, Warren G. Hobson, has appealed from an order overruling motion for a new trial and from a judgment entered in favor of Cleveland C. Hall, defendant in error, on an instructed verdict, and on February 28, 1951, filed his brief. The brief and the authorities therein cited reasonably sustain the allegations of the petition in error. The defendant in error has filed no brief and has offered no excuse for such failure. Under such circumstances as held by this court in Durham v. Brown, 164 Okla. 139, 24 P.2d 295, it is not the duty of this court to search the record for some theory upon which to sustain the action of the trial court, but the court may in its discretion reverse and remand the cause with directions.
The cause is reversed and remanded, with directions to the trial court to vacate the judgment entered for the plaintiff in the trial court and to sustain the defendant's motion for a new trial.
HALLEY, C.J., and WELCH, CORN, DAVISON, O'NEAL, WILLIAMS and BLACKBIRD, JJ., concur.