Security Ins. Co. v. Droke , 40 Okla. 116 ( 1913 )

This proceeding in error is prosecuted to reverse an order of the trial court refusing to vacate and set aside a default judgment rendered by said court in favor of defendant in error and against plaintiff in error. Plaintiff in error, within the time prescribed by the rules of this court, has filed its brief, wherein it has set out the facts and has cited numerous authorities to sustain its contention that the trial court abused its discretion in refusing to sustain the petition of plaintiff in error to vacate and set aside the judgment rendered against it upon default; the ground upon which said motion was made being that the judgment was obtained by the fraud of plaintiff and by unavoidable casualty which prevented defendant from defending the action. Defendant in error has chosen not to file any brief in this court in answer to the brief of plaintiff in error, or in support of the judgment of the trial court. The brief of plaintiff in error appears to sustain fully its contention. It has been held repeatedly by this court that where plaintiff in error has prepared, served, and filed his brief as required by the rules of the court, and there is no brief filed or no reason given for its absence on the part of defendant in error, the court is not required to search the record to find some theory upon which the judgment below may be sustained; but, where the brief filed by plaintiff in error appears reasonably to sustain his assignments of error, the court will reverse the judgment in accordance with the prayer of the petition in error. Butler v. McSpadden,25 Okla. 465, 107 P. 170; Ellis v. Outler, 25 Okla. 469,106 P. 957; Flanagan v. Davis, 27 Okla. 422, 112 P. 990;Missouri, K. T. Ry. Co. v. Long, 27 Okla. 456, 112 P. 991.

The judgment of the trial court is, accordingly, reversed, and the cause remanded, with direction to grant a new trial.

All the Justices concur, except WILLIAMS, J., not participating.