BURTNER v. WILKINS

BURTNER v. WILKINS
1949 OK 97
206 P.2d 203
201 Okla. 372
Case Number: 33680
Decided: 05/10/1949
Supreme Court of Oklahoma

Syllabus

¶0 APPEAL AND ERROR - Reversal on failure of defendant in error to file brief.
Where plaintiffs in error have 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, Tulsa County; John Ladner, Judge.

Action by J.H. Wilkins against J.P. Burtner, Commissioner of Fire and Police, et al. to enjoin defendants from enforcing an ordinance. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

A. Langley Coffey, City Atty., and Coffey & Coffey, all of Tulsa, for plaintiffs in error.

M.S. Simms, of Sand Springs, for defendant in error.

LUTTRELL, J.

¶1 Plaintiff Wilkins brought this action against Burtner and others to enjoin them from enforcing an ordinance of the city of Sand Springs. Defendants demurred to plaintiff's petition, and when the demurrer was overruled by the trial court, stood on the demurrer and refused to plead further. Thereupon the trial court rendered judgment in favor of plaintiff perpetually enjoining defendants from enforcing said ordinance as against the plaintiff. Defendants appeal.

¶2 On June 19, 1948, defendants, plaintiffs in error here, filed their brief. The defendant in error has filed no brief and has offered no excuse for such failure.

¶3 We have examined the brief of plaintiffs in error and the authorities therein cited reasonably sustain the allegations of their petition in error. Under such circumstances it is not the duty of this court to search the record for some theory upon which to sustain the action of the trial court, but this court in such case may reverse the trial court and remand the case with directions. Durham v. Brown, 164 Okla. 139, 24 P.2d 295.

¶4 The judgment of the trial court is reversed and the cause remanded, with directions to the trial court to vacate the judgment for plaintiff and sustain the demurrer of defendants to plaintiff's petition.