JULIUS SCHMID Inc. v. McKAY

JULIUS SCHMID Inc. v. McKAY
1950 OK 259
223 P.2d 529
203 Okla. 502
Case Number: 34504
Decided: 10/24/1950
Supreme Court of Oklahoma

Syllabus

¶0 APPEAL AND ERROR - Failure of defendant to file brief - Reversed, with directions.
Where plaintiff, unsuccessful in the trial court, has properly appealed to this court and has served and filed brief, but defendant has neither filed 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 should be sustained, but this court may treat the action of defendant as being an abandonment of his defense or as a confession of plaintiff's right to the relief sought, and may upon that consideration reverse the judgment and remand the cause with directions to grant plaintiff the relief sought.

Appeal from District Court, Garfield County; O. C. Wybrant, Judge.

Action by Julius Schmid, Inc., against William J. McKay for injunction. From judgment denying plaintiff any relief, the plaintiff appeals. Reversed and remanded, with directions.

Simons, Simons, Mitchell, Headrick & Munn, Enid, for plaintiff in error.

L. E. Roseboom, Enid, for defendant in error.

WELCH, J.

¶1 Plaintiff in error, who was plaintiff below, has appealed from a judgment entered against him in the trial court denying certain injunctive relief sought by the plaintiff.

¶2 Plaintiff in error has served and filed his brief in full compliance with the rules of this court. The defendant has filed no brief and has offered no excuse for such failure. Under such circumstances as stated in Anderson v. Culver, 199 Okl. 306, 185 P.2d 918, 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 the judgment may be reversed and the cause remanded with directions.

¶3 Our many decisions and determinations in such circumstances justify the conclusion that we may treat such action on the part of the defendant as an abandonment of his defense or as a confession of the right of plaintiff to the relief sought.

¶4 The judgment denying plaintiff the relief sought is reversed and the cause is remanded to the trial court with directions to vacate the judgment entered in favor of defendant, and to enter judgment for the plaintiff for the relief sought.

¶5 ARNOLD, V. C. J., and CORN, GIBSON, LUTTRELL, HALLEY, JOHNSON and O'NEAL, JJ., concur.