GIVENS v. MOULDER

GIVENS v. MOULDER
1950 OK 151
219 P.2d 630
203 Okla. 152
Case Number: 33635
Decided: 05/31/1950
Supreme Court of Oklahoma

Syllabus

¶0 APPEAL AND ERROR Reversal where defendant in error has failed to file brief.
Where plaintiff in error has served and filed brief, complaining only of the rendition of judgment against him upon one of several causes of action, and asserts in his brief that there was no evidence to sustain the judgment thereon, 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 as to the cause of action complained of, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the judgment and remand the cause with directions.

Appeal from Court of Common Pleas, Oklahoma County; Carl Traub, Judge.

Action by L. M. Moulder against Roger Givens for commission on a sale of real estate. From a judgment for the plaintiff, defendant appeals. Reversed and remanded, with directions.

Albert D. Lynn, Oklahoma City, for plaintiff in error.

Jim Barnett, Oklahoma City, for defendant in error.

JOHNSON, J.

¶1 Plaintiff in error has appealed from a judgment entered against him in the trial court. On August 12, 1948, he filed his brief. The authorities therein cited reasonably sustain the allegations of error. The defendant in error has filed no brief and has offered no excuse for such failure. Under the rule announced in Osborne v. Osborne, 163 Okl. 273, 21 P.2d 1056, it is not the duty of this court to search the record for some theory upon which to sustain the judgment of the trial court, but the cause may be reversed and remanded with directions.

¶2 The defendant in error obtained a judgment for $655, the full amount sued for, upon a verdict of the jury, and the plaintiff in error in this appeal asserts that the judgment in so far as it involves the sixth cause of action in the sum of $237.50 is not sustained by any evidence. This is the single proposition that the plaintiff in error presents in the petition in error and the brief in support thereof.

¶3 The judgment of the trial court is reversed and the cause is remanded to the trial court with directions to enter judgment for the plaintiff in the sum of $417.50.

¶4 DAVISON, C. J., ARNOLD, V. C. J., and WELCH, GIBSON, LUTTRELL, HALLEY and O'NEAL, JJ., concur.

¶5 CORN, J., dissents.