Russell & Washington v. Robertson

Russell Washington, plaintiffs in error, commenced this action in the district court of Love county against Jim Robertson, defendant in error, to recover possession of nine head of cattle, in replevin. The defendant filed answer denying the allegation of the plaintiffs' petition, and upon the issues joined a trial was had, and by consent of both parties to the action, after the introduction of the testimony on behalf of the plaintiffs and the defendant, the cause was withdrawn from the jury and the issues of fact submitted to the court. The court rendered judgment in favor of the defendant. Plaintiffs filed a motion for a new trial, which was by the court overruled. The plaintiffs have appealed to this court to review the judgment.

It appears from the record in this cause that the plaintiffs in error filed their brief in this court on November 23, 1920, and that service of the brief of the plaintiffs in error was made upon the attorneys of record for the defendant in error on April 12, 1921, and that no brief has been filed by the defendant in error and no reason given why the defendant in error has not briefed the cause. The assignment of errors of the plaintiffs appears to be reasonably sustained, and it is not incumbent upon this court to search the record to find some theory upon which to sustain the judgment, and in such a situation this court will reverse and remand the cause, with directions to the trial court to grant a new trial. Security Ins. Co. v. Droke, 40 Okla. 116, 136 P. 340; Prost v. Haley,63 Okla. 19, 161 P. 1174.

The judgment is reversed, and the cause remanded, and the trial court directed to grant the plaintiffs a new trial.

PITCHFORD, V. C. J., and KANE, JOHNSON, and MILLER, JJ., concur.