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469 P.2d 1006

Mulkey v. State

Supreme Court of Oklahoma

Decided May 5, 1970

Supreme Court of Oklahoma · decided 1970-05-05

Cited by 1 later decisions — most recently June 1976

1 state decisions

Key passage — most relied on by later courts

““Where plaintiff in error has served and filed brief but the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, 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 authorities in the brief filed appear reasonably to sustain the assignments of error, reverse the cause with directions.””

quoted by 1 later decision, including Caudillo v. Corporation Commission

Relies on Hough v. Hough · Anderson v. State ex rel. Burnett · Scherubel v. Askew

Good law ✅— No negative treatment on recordhow we know

Decided 1970-05-05

View the full empirical analysis of this case →

LAVENDER, Justice.

¶1Appellate proceeding on original record to review order of forfeiture of cash bond for failure of accused to appear was commenced by petition in error. Plaintiff in error filed brief in chief March 18, 1969. No answer brief was filed within the forty days next thereafter ensuing nor was failure to brief by defendant in error excused by this court. On February 20, 1970, defendant in error was by order informed the appeal would stand submitted on brief by plaintiff in error unless answer brief was filed on or before March 12, 1970. No answer brief has been filed and no extension of time to brief has been sought.

¶2Where a defendant in error fails to file answer brief and the brief in chief by plaintiff in error reasonably supports the allegations of error asserted 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 the cause will be reversed with directions to vacate the judgment of the trial court and dismiss the cause or grant a new trial. Anderson v. State ex rel. Burnett (1954), Okl., 272 P.2d 405; Viersen v. Stanfill (1952), 206 Okl. 184, 242 P.2d 162; Scherubel v. Askew (1914), 42 Okl. 273, 141 P. 410.

¶3The allegations of error by plaintiff in error are reasonably supported by the authorities and argument of the brief in chief and the cause is accordingly reversed with directions to vacate the order of forfeiture in causes numbered 11849, 11850 and 11851 and to discharge the surety on the related appearance bond or bonds.

All of the Justices concur.
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