Swartz v. Bigby

Opinion by LOGSDON, C. This proceeding in error was prosecuted by William Swartz against Charles H. Bigby and Frank Tanner to reverse a judgment of the district court of Carter county in favor of defendants against -the plaintiff, in which plaintiff had sued to recover the sum of $400 and interest on a certain promissory note executed by the defendants. Plaintiff has filed his brief in this court, but no brief has been filed by the defendants nor any excuse given for failure so to do. The records of this court do not show any extension of time granted to the defendants for filing brief nor any application therefor. It is a well-established rule of this court that it is not required to search the record to find some theory upon which the judgment of the trial court may be sustained. Under the circumstances stated, where the brief filed by the plaintiff reasonably sustains the assignments of error contained in the petition in error, the judgment will be reversed in accordance with the prayer of the petition in error. Frost v. Haley, 63 Okla. 19, 161 Pac. 1174; Security Ins. Co. v. Droke, 40 Okla. 116, 136 Pac. 430; J. Rosenbaum Grain Co. v. Higgins, 40 Okla. 181, 136 Pac. 1073: Purcell Bridge & Transfer Co. v. Hine, 40 Okla. 200. 137 Pac. 668: First Nat. Bank of Sallisaw v. Ballard, 41 Okla. 553, 139 Pac. 293. After a careful examination of plaintiff’s brief herein, it is concluded that the judgment of the trial court should be reversed, and the cause remanded to the district court of Garter county, with directions to grant a new trial in the action. By the Court: It is so ordered.