Opinion
No. 11483
Opinion Filed May 22, 1923.
Appeal and Error — Failure to File Brief — Reversal.
Where the plaintiff in error has served and filed brief in compliance with the rules of this court, and defendant in error has neither filed a brief nor offered an excuse for such failure, the court is not required to search the record to find some theory upon which the judgment of the court below may be sustained, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the cause in accordance with the prayer of the petitioner.
(Syllabus by Stephenson, C.)Commissioners' Opinion, Division No. 4.
Error from District Court, Carter County; Frank Mathews, Judge.
Action by M.T. Pierce against Calvin S. Beaver and W.W. Woodworth to cancel oil and gas lease. Defendant Beaver adopted the allegations of plaintiff's petition. Judgment for defendant Woodworth deny cancellation of instrument. M.T. Pierce and Calvin S. Beaver bring error to this court. Reversed all remanded.
Eddleman Sneed, for plaintiff in error M.T. Pierce.
H.A. Ledbetter, for plaintiff in error Calvin S. Beaver.
R.A. Hefner, for defendant in error.
The plaintiff commenced his action against Calvin S. Beaver, the owner of the land involved, and W.W. Woodworth, the claimant of an oil and gas lease on the same land, for cancellation of the lease owned by the latter. The defendant Calvin S. Beaver adopted the allegations of plaintiff's petition and prayed for similar relief. Upon a trial of this cause in the district court of Carter county, judgment was rendered against M.T. Pierce and Calvin S. Beaver, denying cancellation of the oil and gas lease claimed by the defendant, W.W. Woolworth. Plaintiffs in error have served and filed their briefs in this cause, and the authorities therein cited reasonably tend to support the assignments of error. The defendant in error has not filed his answer brief nor secured an extension of time in which to prepare and serve brief. Under the rule heretofore announced by this court, we are not called upon to seach the record for some theory upon which the judgment of the trial court may be sustained, and where the authorities cited by the plaintiff in error reasonably tend to support the assignments of error relied upon to reverse the cause, the prayer of the petition will be granted and the cause reversed and remanded. St. Louis S. F. R. Co. v. Lowrance, 67 Okla. 175, 169 P. 1086; Chicago, R.I. P. Ry. Co. v. Weaver, 67 Okla. 293, 171 P. 34; Chicago, R.I. P. Ry. Co. v. Mackey, 69 Okla. 142, 170 P. 898; Johnson v. Bradley, 69 Oklahoma, 171 P. 724.
Therefore we recommend that the cause be reversed and remanded.
By the Court: It is so ordered.