St. Paul Fire Marine Ins. Co. v. McClendon

Supreme Court of Oklahoma

St. Paul Fire Marine Ins. Co. v. McClendon

1929 OK 456, 281 P. 773, 139 Okla. 184, 1929 Okla. LEXIS 264

CourtSupreme Court of Oklahoma

DecidedOctober 22, 1929

Docket18086

StatusPublished

This text of 1929 OK 456 (St. Paul Fire Marine Ins. Co. v. McClendon) 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.

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St. Paul Fire Marine Ins. Co. v. McClendon, 1929 OK 456, 281 P. 773, 139 Okla. 184, 1929 Okla. LEXIS 264 (Okla. 1929).

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Opinion

BENNETT, C.

This is an appeal by the St. Paul Eire & Marine Insurance Company, plaintiff in error, from a judgment for $330 rendered in the district court of Roger Mills county, Okla., against said insurance company, and in favor of S. A. McClendon, defendant in error here, and the plaintiff below.

The plaintiff in error, in due time, filed its case-made In this court, and thereafter, to wit, on February 5, 1927, filed herein its brief, and there appears in the cause an acknowledgment in writing of service of said brief upon defendant in error by the attorneys of record for the defendant in error, which acknowledgment of service bears date of February 8, 1927, and was filed in the office of the Clerk of this court February 10, 1927. Thereafter, on March 22, 1927, the defendant in error was granted 30 days additional from that date within which to file his brief.

It appears from the record in the cause that defendant in error has wholly failed to file said brief and has offered no excuse for his failure so to do. Under this condition of the record, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may, where the plaintiff in error files his brief and cites authorities therein which reasonably support and sustain the assignments of error, reverse the judgment of the lower court in accordance with the prayer of the petition in error. City Nat. Bank v. Coatney, 122 Okla. 233, 253 Pac. 481; C., R. I. & P. Ry. Co. v. Weaver, 67 Okla. 293, 171 Pac. 34; Lawton Nat. Bank v. Ulrich, 81 Okla. 159, 197 Pac. 167; and other cases cited in Oklahoma Three-in-One Service 1928, under paragraph 439, under the topic of “Appeal and Error.”

Among other prayers, plaintiff, in error prays for a new trial. We find that the authorities cited in his brief apparently support the grounds upon which he asks a new trial, and we therefore vacate the judgment of the trial court, and reverse the ease, and award the plaintiff in error a new trial.

HALL, HERR, DIFHENDAFFER, and TEEHEE (for JEFFREY, C.), Commissioners, concur.

By the Court: It is so ordered.

Note. — See “Appeal and Error,” 3 C. J. §1607, p. 1447, n. 46.

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BENNETT, C.

This is an appeal by the St. Paul Eire & Marine Insurance Company, plaintiff in error, from a judgment for $330 rendered in the district court of Roger Mills county, Okla., against said insurance company, and in favor of S. A. McClendon, defendant in error here, and the plaintiff below.

The plaintiff in error, in due time, filed its case-made In this court, and thereafter, to wit, on February 5, 1927, filed herein its brief, and there appears in the cause an acknowledgment in writing of service of said brief upon defendant in error by the attorneys of record for the defendant in error, which acknowledgment of service bears date of February 8, 1927, and was filed in the office of the Clerk of this court February 10, 1927. Thereafter, on March 22, 1927, the defendant in error was granted 30 days additional from that date within which to file his brief.

It appears from the record in the cause that defendant in error has wholly failed to file said brief and has offered no excuse for his failure so to do. Under this condition of the record, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may, where the plaintiff in error files his brief and cites authorities therein which reasonably support and sustain the assignments of error, reverse the judgment of the lower court in accordance with the prayer of the petition in error. City Nat. Bank v. Coatney, 122 Okla. 233, 253 Pac. 481; C., R. I. & P. Ry. Co. v. Weaver, 67 Okla. 293, 171 Pac. 34; Lawton Nat. Bank v. Ulrich, 81 Okla. 159, 197 Pac. 167; and other cases cited in Oklahoma Three-in-One Service 1928, under paragraph 439, under the topic of “Appeal and Error.”

Among other prayers, plaintiff, in error prays for a new trial. We find that the authorities cited in his brief apparently support the grounds upon which he asks a new trial, and we therefore vacate the judgment of the trial court, and reverse the ease, and award the plaintiff in error a new trial.

HALL, HERR, DIFHENDAFFER, and TEEHEE (for JEFFREY, C.), Commissioners, concur.

By the Court: It is so ordered.

Note. — See “Appeal and Error,” 3 C. J. §1607, p. 1447, n. 46.

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1929 OK 456, 281 P. 773, 139 Okla. 184, 1929 Okla. LEXIS 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-paul-fire-marine-ins-co-v-mcclendon-okla-1929.

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