Carrithers v. State Ex Rel. Wallace, Co.

1924 OK 694, 229 P. 215, 100 Okla. 196, 1924 Okla. LEXIS 968

• Court: Supreme Court of Oklahoma
• Decided: September 16, 1924
• Docket: 14541
• Status: Published

Opinion

Opinion by

THOMPSON, C.

This action was commenced in the district court of Creek county, Okla., by the state of Oklahoma ex rel. Tom Wallace, county attorney of Creek county. Okla., defendant in .error, plaintiff below, against Jim Carrithers, plaintiff in error, defendant below, under the prohibition laws of the state of Oklahoma, praying for an injunction closing up the Star Drug Store in Sapulpa, Okla., for violating the prohibition laws by selling intoxicating .liquors.

The defendant answered by way of general denial.

Upon trial the court rendered judgment in favor of the plaintiff for an injunction,. ordering the place of business of the defendant closed.

The cause comes to this court regularly upon appeal by defendant from said judgment.

Attorneys for defendant prepared and filed their brief in support of their appeal, which was duly served upon the plaintiff on the 4th day of September, 1923.

The plaintiff has 'failed to file any answer brief, although the time has expired for filing the same under the rules of this court, and has given no reason or excuse for failure to file said brief under the orders of this court, and no extension of time has been requested or granted to the plaintiff to file said brief.

The cause having been regularly assigned to Commissioners’ Division No. 5, for an ■opinion, upon an examination of the entire record and the brief of defendant and petition in error, it is the opinion of the court that the brief of defendant appears to reasonably support the assignments of error and in this state it is not the duty of the court to search the record with a view of ‘ ascertaining some possible theory upon which the judgment-may be affirmed.

The contention of defendant, under the assignments of error, motion for new trial and petition in error, seems to be supported by the authorities cited in the brief of defendant. Having reached this conclusion, it is, therefore, our opinion that the decision of the lower court should be and is hereby reversed and remanded, with direction to the district court, of Creek county to grant a new trial.

By the Court: It is so ordered.