MULKEY v. STATE

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MULKEY v. STATE
1970 OK 84
469 P.2d 1006
Case Number: 43343
Decided: 05/05/1970
Supreme Court of Oklahoma

VEREL MULKEY, PLAINTIFF IN ERROR,
v.
STATE OF OKLAHOMA, DEFENDANT IN ERROR.

Appeal from the County Court of Blaine County; John Butler, Assigned Judge.

¶0 Appeal from order of forfeiture of cash appearance bond. Reversed and remanded with directions to vacate order of forfeiture.

Shirley & Stephenson, Tom R. Stephenson, Watonga, for plaintiff in error.

Virgil Ball, Dist. Atty., Watonga, for defendant in error.

LAVENDER, Justice.

¶1 Appellate proceeding on original record to review order of forfeiture of cash bond for failure of accused to appear was commenced by petition in error. Plaintiff in error filed brief in chief March 18, 1969. No answer brief was filed within the forty days next thereafter ensuing nor was failure to brief by defendant in error excused by this court. On February 20, 1970, defendant in error was by order informed the appeal would stand submitted on brief by plaintiff in error unless answer brief was filed on or before March 12, 1970. No answer brief has been filed and no extension of time to brief has been sought.

¶2 Where a defendant in error fails to file answer brief and the brief in chief by plaintiff in error reasonably supports the allegations of error asserted 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 the cause will be reversed with directions to vacate the judgment of the trial court and dismiss the cause or grant a new trial. Anderson v. State ex rel. Burnett (1954), Okl., 272 P.2d 405; Viersen v. Stanfill (1952), 206 Okl. 184, 242 P.2d 162; Scherubel v. Askew (1914), 42 Okl. 273, 141 P. 410.

¶3 The allegations of error by plaintiff in error are reasonably supported by the authorities and argument of the brief in chief and the cause is accordingly reversed with directions to vacate the order of forfeiture in causes numbered 11849, 11850 and 11851 and to discharge the surety on the related appearance bond or bonds.

¶4 All of the Justices concur.