Smith v. Whitlow

Opinion by HANTS, C. The petition in error, with the case-made attached, was duly filed in this court on the 27th day of February, A. D. 1914. The plaintiff in error filed his brief on August 7. 1914, but up to this date the defendant in error, has not filed any brief or motions of any kind or offered any excuse for sucb failure. It is a well-established rule of-this court that when the-brief of flue plaintiff in error reasonably appears to support tbe assignments of error, the court will not search the record to ascertain some possible theory on which the case may be affirmed, but if the assignments of error appear to be reasonably supported by the record, the case will be reversed. Butler v. McSpadden, 25 Okla. 465, 107 Pac. 170; Dievert et al., School Board of District No. 79, v. Rainey et al., 41 Okla. 31, 136 Pac. 1086. Upon examination of the record in this case we are of the opinion that the assignments of error herein are reasonably supported by said record. We, therefore, invoke and apply said rule in this cause. The judgment of the lower court is reversed, and the cause remanded to the district court of Cartel- county, Okla., with instructions to set said judgment aside and to set aside the order of court overruling the plaintiff’s motion for a new trial, and to enter an order sustaining the same, and to grant a new trial in said cause, and for such further proceedings as may he proper under the law. By the Court: It is so ordered.