HILL v. McCLEERY et al.

HILL v. McCLEERY et al.
1931 OK 685
4 P.2d 1014
153 Okla. 59
Case Number: 21745
Decided: 11/10/1931
Supreme Court of Oklahoma

HILL
v.
McCLEERY et al.

Syllabus

¶0 Appeal and Error--Reversal--Failure of Defendant in Error to File Brief.
Where plaintiff in error has served and filed its brief in compliance with the rules of this court, and the defendants in error have neither filed a brief nor offered any excuse for their 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, Ottawa County; J. J. Smith, Judge.

Motion by S. J. McCleery, et al., defendants, to release property from levy made under execution by plaintiff, judgment creditor. From the order and judgment rendered in favor of the defendant, sustaining the motion and releasing property from levy and restraining the plaintiff from proceeding further with the levy on said property or making sale thereunder, the plaintiff brings error. Reversed and remanded, with directions.

A. K. Little and William T. Rye, for plaintiff in error.
Charles R. Weaver and O. F. Mason, for defendants in error.

PER CURIAM.

¶1 This is an appeal from an order of the district court of Ottawa county, Okla., sustaining the motion of the defendants to release property from levy, and ordering the same released and restraining the plaintiff from proceeding further with the levy on said property or making sale thereunder; said order and judgment having been rendered on the 25th day of March, 1930.

¶2 Plaintiff in error, in due time, filed petition in error with case-made in this court, and served and filed a brief in full compliance with the rules of this court, but the defendants in error have wholly failed to file answer brief, pleading, or any other instrument in said cause on appeal, within the time provided by the rules of the court or within any extension of time granted by this court; neither have the defendants in error offered any excuse for their failure to do so.

"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.