EXCHANGE NAT. BANK v. SLOAN

EXCHANGE NAT. BANK v. SLOAN
1928 OK 634
271 P. 635
133 Okla. 251
Case Number: 19141
Decided: 10/30/1928
Supreme Court of Oklahoma

EXCHANGE NAT. BANK
v.
SLOAN.

Syllabus

¶0 Appeal and Error--Reversal--Failure to File Answer Brief.
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.

Roy S. Sherry, for plaintiff in error.
Arthur Sloan, for defendant in error.

HUNT, J.

¶1 This is an appeal from the district court of Osage county. The plaintiff in error here, as plaintiff below, filed this action in the district court of Osage county against the defendant, and said cause having been set for trial and the plaintiff failing to appear, the same was dismissed for want of prosecution. Shortly thereafter and within term time, plaintiff filed its motion to set aside the order dismissing said cause for want of prosecution, setting out therein numerous grounds, which are unnecessary to consider herein. This motion, after hearing had thereon, was overruled, and from this order and judgment plaintiff has perfected its appeal to this court. Plaintiff in error in due time served and filed its brief in full compliance with the rules of this court, but the defendant has wholly failed to file any brief or to otherwise appear in this court, nor has he offered any excuse for his failure so to do, and is now wholly in default.

¶2 We have examined the authorities set out in the brief of plaintiff in error, and same appear to reasonably sustain the assignments of error contained in the petition in error filed herein. It therefore becomes our duty, under the well-established rules of this court, to reverse this cause, with directions, in accordance with the prayer of the petition is error. See City National Bank v. Coatney, 122 Okla. 233, 253 P. 481, wherein this court said:

"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."

See, also, Chicago, R.I. & P. Ry. Co. v. Weaver, 67 Okla. 293, 171 P. 34; Lawton National Bank v. Ulrich, 81 Okla. 159, 197 P. 167.

¶3 The petition in error herein prays that this cause be reversed and remanded to the district court of Osage county, with directions to sustain the motion of plaintiff to set aside the order dismissing plaintiff's cause of action for want of prosecution, and upon authority of City National Bank v. Coatney, supra, it is so ordered, and this cause is therefore reversed, with directions to sustain the motion of plaintiff and to set aside the order of dismissal and reinstate the cause.