Beaver v. Okla. State Loan Co.

• Decision Date: 09 January 1912
• Docket Number: Case Number: 1287
• Citation: 1912 OK 9,30 Okla. 585,120 P. 943
• Parties: BEAVER et ux. v. OKLAHOMA STATE LOAN CO. et el.
• Court: Oklahoma Supreme Court

1912 OK 9

120 P. 943

30 Okla. 585

BEAVER et ux. v. OKLAHOMA STATE LOAN CO. et el.

Case Number: 1287

Supreme Court of Oklahoma

Decided: January 9, 1912

Syllabus

¶0 APPEAL AND ERROR -- Review -- Failure to File Brief -- Reversal. Where plaintiff in error has completed his record and filed it in this court, and has served and filed a brief, in compliance with the rules of this court, and defendant in error has neither filed a brief nor offered any excuse for such failure, the court is not required to search the record to find some theory upon which the judgment may be sustained; and, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with the prayer of the plaintiff in error, or the rights of the parties.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by Lawson W. Beaver and wife against the Oklahoma State Loan Company and others. Judgment for defendants, and plaintiffs bring error. Reversed and remanded.

H. R. Winn, for plaintiffs in error.

SHARP, C.

¶1 This action was instituted in the district court of Oklahoma county, January 14, 1908, by plaintiffs in error, against defendant in error, the Oklahoma State Loan Company, and sought the cancellation of a certain note and mortgage theretofore given by plaintiffs to said defendant, and for damages, as provided by section 911, Wilson's Rev. & Ann. St. 1903. After the filing of various pleadings, plaintiffs, on March 29, 1909, filed an amended petition, in which they joined as defendants eight individuals, who, it was alleged, were officers of defendant company, and managed and conducted the business of the corporation during the years 1905 to 1908, inclusive. On May 12, 1909, defendant in error, the Oklahoma State Loan Company, filed a demurrer to plaintiffs' amended petition, in which it challenged the sufficiency of both the first and second causes of action therein set out, and, on the same day, defendant in error, Will G. Brown, and two of the other defendants in error, filed a like demurrer. On May 22, 1909, both demurrers were by the court sustained, to which action of the court plaintiffs excepted. Motion for new trial being filed and overruled, plaintiffs have prosecuted an appeal to this court, assigning numerous errors committed by the court below.

¶2 Upon the assignment of this case for oral argument, plaintiffs in error, by leave of court, dismissed as to all the defendants in error, except the Oklahoma State Loan Company and Will G. Brown, and counsel theretofore representing all the defendants in error withdrew from the case, having first notified the remaining defendants in error of their intention so to do.

¶3 The petition in error in this case was filed December 18, 1909, and counsel for plaintiffs in error, on March 22, 1910, filed their brief. Defendants in error have filed no brief, and have given no reason for their failure to do so. Under these circumstances, this court is not required to look to the record to ascertain upon what possible theory the judgment of the trial court might be sustained, but will exercise the option given it, under rule 8 (20 Okla. viii, 95 P. vi). Flanagan et al. v. Davis, 27 Okla. 422, 112 P. 990, and Oklahoma cases cited; Butler v. Stinson, 26 Okla. 216, 108 P. 1103; Ellis v. Outler, 25 Okla. 469, 106 P. 957; Buckner v. Oklahoma National Bank, 25 Okla. 472, 106 P. 959; Reeves v. Brennan, 25 Okla. 544, 106 P. 959; Butler v. McSpadden, 25 Okla. 465, 107 P. 170.

¶4 We have read the brief filed by counsel for plaintiffs in error, and have also carefully read the entire record, and, from a consideration thereof, it appears to us that certain propositions relied on are well taken. In the absence of a brief on the part of defendants in error, we are without...