Hill v. McCleery ( 1931 )

This is an appeal from an order of the district court of Ottawa county, Okla., sustaining the motion of the defendants to release property from levy, and ordering the same released and restraining the plaintiff from proceeding further with the levy on said property or making sale thereunder; said order and judgment having been rendered on the 25th day of March, 1930.

Plaintiff in error, in due time, filed petition in error with case-made in this court, and served and filed a brief in full compliance with the rules of this court, but the defendants in error have wholly failed to file answer brief, pleading, or any other instrument in said cause on appeal, within the time provided by the rules of the court or within any extension of time granted by this court; neither have the defendants in error offered any excuse for their failure to do so.

"Where plaintiff in error has served and filed its brief in compliance with the rules of this court, and the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, this 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, in accordance with the prayer of the petition in error." City National Bank v. Coatney, 122 Okla. 233, 253 P. 481.

In this cause the petition in error prays that the order and judgment of the trial court be vacated, set aside, and held for naught, and that the cause be reversed and remanded, with directions to the trial court to enter its order and judgment overruling the motion of the defendant in error to release property from levy. We have examined the brief of the plaintiff in error and the assignments are reasonably supported by the authorities cited therein, and under the oft-repeated holdings of this court plaintiff in error is entitled to judgment reversing the order and judgment of the lower court and directing that it vacate its former order and judgment and enter an order in favor of the plaintiff in error overruling the motion to release the property from levy, filed by the defendant in error, as prayed for.

This cause is therefore reversed and remanded to the lower court, with directions to vacate its former order and to enter an order overruling the motion to release the property from levy, as made and filed by the defendants below.

Note. — See under (1) 2 Rawle C. L. 176; R. C. L. Perm. Supp. p. 360.