Opinion
No. 10080
Opinion Filed March 22, 1921.
(Syllabus.)
Appeal and Error — Failure to File Brief — Reversal.
Where plaintiff in error has completed his record and filed it in this court, and has served and filed a brief in compliance with the rules of the court, and the defendant in error has neither filed a brief nor offered an excuse for such failure, 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 case in accordance with the prayer of the petition of plaintiff in error.
Action by the State against One Certain Hupmobile, T.C. Wilson, and others to forfeit automobile used in transportation of intoxicating liquor. Judgment for plaintiff, and defendants bring error. Affirmed in part, reversed and remanded in part.
William Pfeiffer, for plaintiffs in error.
This is an action brought by the defendant in error, the state of Oklahoma, against the plaintiffs in error, One Certain Hupmobile, T.C. Wilson, Oliver Smith, et al., instituted in the county court of Okmulgee county, Okla., for the seizure, condemnation, and sale of one certain Hupmobile described in the return of the sheriff of Okmulgee county, Okla.
A certain Hupmobile was alleged to have been in the possession of plaintiffs in error T.C. Wilson and Oliver Smith, who were on the 29th day of December, 1917, using said automobile for the unlawful purpose of transporting and conveying intoxicating liquors in violation of the laws of the state. Thereafter, on the 31st day of December, 1917, there was filed in said court an order authorizing and directing the sheriff of Okmulgee county to destroy the intoxicating liquors alleged to have been so unlawfully transported in said Hupmobile, and said sheriff to safely keep in his possession said Hupmobile until the further orders of the court. And thereafter, on the 9th day of January, 1918, the plaintiffs in error T.C. Wilson and Oliver Smith filed their answer herein, which consisted of a general denial. And thereafter, on the 9th day of January, 1918, one G.W. Houghtaling filed his interplea in this cause, in which he claims the right to the immediate possession of the car in question under and by virtue of the terms of a certain chattel mortgage.
And thereafter, on the 16th day of January, 1918, this cause came on regularly for trial in said court between the state of Oklahoma, plaintiff, T.C. Wilson and Oliver Smith, defendants, and G.W. Houghtaling, interpleader, which trial was continued from the 16th day of January to the 17th day of January, 1918, by appropriate order, on which later date the jury, after having heard the evidence, argument of counsel, and instructions of the court, retired in charge of the bailiff to consider of its verdict, and after deliberation returned into open court the following verdict, to wit:
"We, the jury, impaneled and sworn in the above-entitled cause, do upon our oaths find for the plaintiff and against the defendants, and find that the interplea of G.W. Houghtaling should be denied, and that possession of the motor car involved should be awarded to the state of Oklahoma to be disposed of according to law.
"B.F. Sowerso, Foreman."
And thereafter, on the 19th day of January, 1918, the plaintiffs in error filed their motion for a new trial. And thereafter, on the 19th day of January, 1918, plaintiff in error G.W. Houghtaling filed his motion for a new trial. Thereafter, on the 6th day of March, 1918, the motions for a new trial were heard by the court, which motions were overruled, and to the action of the court in overruling said motions the plaintiffs in error T.C. Wilson and Oliver Smith and G.W. Houghtaling duly excepted; thereupon the court rendered judgment on the verdict, to which action of the court the plaintiffs in error excepted, and prayed an appeal in open court from the action of the court in overruling their motion for a new trial and in rendering judgment on the verdict.
Thereafter, and within the time required by law, the plaintiffs in error perfected their appeal to this court by filing of the case-made, with petition in error attached, duly attested in the manner required by law and now on file in the clerk's office of this court.
The plaintiffs in error make 15 specifications of error in their petition which are argued in their brief, citing numerous cases in support thereof.
This cause was by order of this court regularly assigned for submission, and the defendant in error has filed no brief as required by rule No. 7 of this court (47 Okla. vi), which rule is as follows:
"In each civil cause filed in this court, counsel for plaintiff in error shall, unless otherwise ordered by the court, serve his brief on counsel for defendant in error at least forty (40) days before the case is set for submission. Counsel for plaintiff in error shall file with the clerk of this court twenty (20) copies of such brief within the time designated, and defendant in error shall within thirty (30) days after service of the brief of plaintiff in error upon him, file with the clerk of this court twenty (20) copies of his answer brief, and serve same upon plaintiff in error; and all reply briefs, except as otherwise ordered by the court, must be filed by the date the case is submitted or called for argument. Proof of service must be filed with the clerk within ten (10) days after service.
"In case of failure to comply with the requirements of this rule, the court may continue or dismiss the cause or reverse or affirm the judgment, in its discretion."
We have carefully examined the brief of plaintiffs in error, and checked the same with the record, and have reached the conclusion therefrom that the judgment of the trial court should be affirmed as to the defendants T.C. Wilson and Oliver Smith, but reversed as to the intervener, G.W. Houghtaling, for the reason that the trial court failed to submit his claims to the jury by appropriate instructions.
The judgment as to the defendants Smith and Wilson is affirmed, and reversed as to the intervener, Houghtaling, and the cause remanded, with directions to proceed therein according to the views herein expressed.
HARRISON, C. J., and PITCHFORD, MILLER, KENNAMER, and NICHOLSON, JJ., concur.