CORBYN v. BURNS

CORBYN v. BURNS
1940 OK 116
100 P.2d 249
186 Okla. 673
Case Number: 29146
Decided: 03/12/1940
Supreme Court of Oklahoma

CORBYN
v.
BURNS et al.

Syllabus

¶0 APPEAL AND ERROR--Reversal--Failure of defendant in error to file brief.
Where plaintiff in error has served and filed brief, 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.

Appeal from District Court, Oklahoma County; Frank P. Douglass, Judge.

Action by Marmaduke Corbyn against H. A. Burns and Lucretia G. Burns. Judgment for defendants, and plaintiff appeals. Reversed, with directions.

Little & Bowman, of Oklahoma City, for plaintiff in error.
Tant & Flinn, of Oklahoma City, for defendant in error.

PER CURIAM.

¶1 Plaintiff brought an action to obtain an equitable interest in certain real property. The trial court sustained a demurrer to the evidence and entered judgment for the defendants. Plaintiff appealed, and on the 15th day of August, 1939, filed his brief, and the authorities therein cited reasonably sustain the allegations of error. No brief has been filed by the defendants in error and no excuse offered for such failure. As stated in Osborne v. Osborne, 163 Okla. 273, 21 P.2d 1056, it is not the duty of this court to search the record to find some theory upon which to sustain the action of the trial court, but in such instance the cause will be reversed and remanded with directions. The cause is reversed and remanded, with directions to set aside the judgment entered for the defendants and to grant a new trial.