ILLINOIS LIFE INS. CO. v. HERRIN

ILLINOIS LIFE INS. CO. v. HERRIN
1933 OK 280
21 P.2d 740
163 Okla. 196
Case Number: 24225
Decided: 05/02/1933
Supreme Court of Oklahoma

ILLINOIS LIFE INSURANCE CO.
v.
HERRIN 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 court, but the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, the 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, Cherokee County; W. A. Woodruff, Judge.

Action by the Illinois Life Insurance Company against H. L. Herrin and another to foreclose a mortgage. From a judgment vacating the order confirming sale, plaintiff below appeals. Reversed and remanded, with directions.

Vance & Bliss, Jos. L. Hull, and W. D. Calkins, for plaintiff in error.
Miller & Miller, for defendants in error.

OPINION: PER CURIAM.

¶1 The district court of Cherokee county, Okla., rendered a judgment in favor of the plaintiff below and against the defendants, decreeing a foreclosure of a mortgage without appraisement, and ordering the lands sold after the expiration of the six-month period provided by law.

¶2 On the 6th day of June, 1932, the sheriff of Cherokee county, Okla., made his return of sale of property sold for $ 1,500, and on June 13, 1932, plaintiff filed his motion for confirmation of said sale, and on June 15, 1932 the defendants filed a protest thereto.

¶3 On the 23rd day of June, 1932, an order vacating the judgment was entered by the court, and from this proceeding on November 9, 1932, plaintiff in error prosecutes his appeal.

¶4 Brief was filed by the plaintiff in error on December 19, 1932, and on April 19, 1933, motion for judgment for failure to brief by the defendants in error was filed.

¶5 It appears that the only reason for the order made by the court below was found in an affidavit of the defendants below that they had a claim against the receivers of the Ward-Way Transportation Company that they expected to pay the judgment with.