Shields v. Boling

Opinion, by RITTENHOUSE,' C.

Plaintiffs in error have perfected' their appeal and served and filed briefs in compliance with the rules of the court. Defendant in *417 error has neither filed a brief nor offered any excuse for such failure.

Judgment was rendered in this causé before a justice of the peace, and appeal perfected to the county court of Cleveland county, Okla. The action is upon a promissory note of $46.25 given for rent of certain lands located in said county: Before the trial in the county court defendants asked leave to file an answer in said cause, setting up an eviction from the premises before expiration of the lease, and asking damages in the sum of $65. The court refused to allow the answer to be filed, and upon the trial refused to allow the defendants to show that there was an eviction and the value of the premises for. grazing purposes. The court did, however, submit these questions to the jury by instructions, but there was a large amount of competent evidence excluded on the measure of damages.

It is the opinion of this court that the trial court erred in refusing to allow defendants to file their answer and to make proof of the questions of eviction and damages. This 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 assignment of error, this court may reverse the judgment in accordance with the prayer of the petition of plaintiff in error.

The cause should therefore be reversed and remanded for a new trial.

By the Court: It is so ordered.