BOARD OF ADJUSTMENT OF CITY OF TULSA v. FRANKLIN

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BOARD OF ADJUSTMENT OF CITY OF TULSA v. FRANKLIN
1953 OK 325
263 P.2d 162
Case Number: 35513
Decided: 11/10/1953
Supreme Court of Oklahoma

Syllabus

¶0 Where plaintiff in error has served and filed its brief in compliance with the rules of court, and 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 the District Court of Tulsa County, Oklahoma, Eben L. Taylor, J.

A.M. Widdows, Edmund Lashley, of Tulsa, for plaintiff in error.

O'NEAL, J.

¶1 Plaintiff in error, The Board of Adjustment of the City of Tulsa, Oklahoma, appealed from an order entered in favor of Onis Franklin, defendant in error, and on September 15, 1952, filed its brief. The brief and the authorities therein cited reasonably sustain the allegations of plaintiff in error. The defendant in error has filed no brief and has offered no excuse for such failure. Under such circumstances, as held by this court in Durham v. Brown, 164 Okl. 139, 24 P.2d 295, 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 court may in its discretion reverse and remand the cause with directions.

¶2 The cause is reversed and remanded with directions to the trial court to vacate the judgment entered for the defendant in error and enter judgment for the plaintiff in error in accordance with the prayer of the petition in error.