Obialero v. Henryetta Spelter Co.

Supreme Court of Oklahoma

Obialero v. Henryetta Spelter Co.

1921 OK 206, 200 P. 143, 82 Okla. 274, 1921 Okla. LEXIS 266

CourtSupreme Court of Oklahoma

DecidedMay 31, 1921

Docket10209

StatusPublished

Cited by10 cases

This text of 1921 OK 206 (Obialero v. Henryetta Spelter Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Obialero v. Henryetta Spelter Co., 1921 OK 206, 200 P. 143, 82 Okla. 274, 1921 Okla. LEXIS 266 (Okla. 1921).

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Opinion

JOHNSON, J.

This is an appeal from the superior court of Okmulgee county; Hon. R. E. Simpson, Judge.

On October 12, 1916, the plaintiff in error, as plaintiff below, commenced an • action against the defendant, a corporation, to abate a nuisance by injunction and to recover damages already accrued on account of such nuisance, and thereafter the cause was transferred to the superior court, where the same was tried on the 3rd day of April, 1918. The injunction feature was tried to the court, and the action for damages to a jury and resulted in a verdict and judgment in favor of the plaintiff for damages in the sum of $275 and the judgment by the court denying injunction. Erom both judgments the plaintiff has appealed, and from the judgment for damages the defendant has filed its cross-appeal. The parties, for convenience, will hereinafter be referred to as plaintiff and defendant, respectively), as they appeared in the trial court.

*275 The plaintiff’s petition in error contains 17 specifications of error, and the defendant’s cross-petition in error contains six specifications of error.

The record discloses that on February 1, 1921, this cause was set for submission on' April 19, 1921, and that thereafter, on April 24, 1921, brief of plaintiff in error was served upon counsel for defendant in error, and thereafter filed in this court. No brief has been filed by the defendant in error, nor any reason presented for failure to file brief. The brief of plaintiff in error appears reasonably to sustain the assignments of error, and, under numerous decisions of this court, we are not required to search the record to find some theory upon which a judgment below may be sustained. Security Ins. Co. v. Droke, 40 Okla. 116, 136 Pac. 340; J. Rosenbaum Grain Co. v. Higgins, 40 Okla. 181, 136 Pac. 1073; Purcell Bridge & Transfer Co. v. Hine, 40 Okla. 200, 137 Pac. 668; First Nat. Bank of Sallisaw v. Ballard, 41 Okla. 553, 139 Pac. 293; DeHart Oil Co. v. Smith, 42 Okla. 201, 140 Pac. 1154; Frost v. Haley, 63 Okla. 19, 161 Pac. 1174.

Therefore, both judgments of the trial court are reversed, and the cause remanded, with direction to grant in each a new trial.

HARRISON, C. J., and MILLER, ELTING. and KENNAMER, JJ., concur.

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JOHNSON, J.

This is an appeal from the superior court of Okmulgee county; Hon. R. E. Simpson, Judge.

On October 12, 1916, the plaintiff in error, as plaintiff below, commenced an • action against the defendant, a corporation, to abate a nuisance by injunction and to recover damages already accrued on account of such nuisance, and thereafter the cause was transferred to the superior court, where the same was tried on the 3rd day of April, 1918. The injunction feature was tried to the court, and the action for damages to a jury and resulted in a verdict and judgment in favor of the plaintiff for damages in the sum of $275 and the judgment by the court denying injunction. Erom both judgments the plaintiff has appealed, and from the judgment for damages the defendant has filed its cross-appeal. The parties, for convenience, will hereinafter be referred to as plaintiff and defendant, respectively), as they appeared in the trial court.

*275 The plaintiff’s petition in error contains 17 specifications of error, and the defendant’s cross-petition in error contains six specifications of error.

The record discloses that on February 1, 1921, this cause was set for submission on' April 19, 1921, and that thereafter, on April 24, 1921, brief of plaintiff in error was served upon counsel for defendant in error, and thereafter filed in this court. No brief has been filed by the defendant in error, nor any reason presented for failure to file brief. The brief of plaintiff in error appears reasonably to sustain the assignments of error, and, under numerous decisions of this court, we are not required to search the record to find some theory upon which a judgment below may be sustained. Security Ins. Co. v. Droke, 40 Okla. 116, 136 Pac. 340; J. Rosenbaum Grain Co. v. Higgins, 40 Okla. 181, 136 Pac. 1073; Purcell Bridge & Transfer Co. v. Hine, 40 Okla. 200, 137 Pac. 668; First Nat. Bank of Sallisaw v. Ballard, 41 Okla. 553, 139 Pac. 293; DeHart Oil Co. v. Smith, 42 Okla. 201, 140 Pac. 1154; Frost v. Haley, 63 Okla. 19, 161 Pac. 1174.

Therefore, both judgments of the trial court are reversed, and the cause remanded, with direction to grant in each a new trial.

HARRISON, C. J., and MILLER, ELTING. and KENNAMER, JJ., concur.

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1921 OK 206, 200 P. 143, 82 Okla. 274, 1921 Okla. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obialero-v-henryetta-spelter-co-okla-1921.

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