181 P. 303 | Okla. | 1918
Lead Opinion
This appeal arises out of the same cause as the appeal in the case of Union Trust Co. v. Mollie N. Hendrickson et al., 69 Oklahoma,
The Union Trust Company held, at the time of the action in the lower court, a first mortgage on said real estate, and the General Bonding Casualty Company had a subsequent mortgage. As the validity of the mortgage of the Union Trust Company is sustained by the decision of this court in the case of Union Trust Co. v. Mollie N. Hendrickson et al., supra, this question between the bonding company and the trust company is settled, and this cause, so far as it pertains to the rights between the plaintiff in error and the Union Trust Company, is affirmed.
As to the other defendants in error, Oklahoma Fire Insurance Company, Occidental Fire Insurance Company, M.N. Hendrickson, administratrix of the estate of W.B. Hendrickson, M.C. Reddington, L.S. Johnson, A.L. Welch, Insurance Commissioner of the State of Oklahoma, Marie Kimpel, and J.A. Baker, the plaintiff in error having perfected its appeal to this court and filed briefs reasonably sustaining its assignments of error, and the defendants in error having filed no brief, nor given any reasonable excuse for their failure to do so, this court will not search the record to find a theory upon which to sustain the judgment of the trial court. The cause should be reversed and remanded as to such defendants in error, with directions to the court to grant a new trial.
Addendum
It appears, on petition to modify the opinion filed May 7, 1918, that defendant in error Occidental Fire Insurance Company was only a nominal party, and the action should have been dismissed as to this company.
Therefore that portion of the opinion reversing the cause as to this defendant is modified, and the action dismissed as to the Occidental Fire Insurance Company, and the opinion in all other respects adhered to.