Skelsey v. Kuhn

ROSS, C. J. (After Stating the Facts as Above).— The defendant assigns several errors, as that the court erred in its instructions to the jury, in the admission of evidence of the alleged oral contract, and finally that the verdict and judgment were not supported by the evidence. These assignments are briefed and argued by defendant to considerable extent, and from our examination of them we feel that they should be sustained. The appellee, in fact, does not resist these assignments. She has filed no brief, although the questions involved are to say the least very novel. In an action to quiet title plaintiff by her evidence sought to establish a trust in her favor in real estate and a declaration of the court to the effect that her equitable title was superior to the title of defendant. Under like circumstances in Childs v. Frederickson, 21 Ariz. 248, 187 Pac. 573, we treated the appellee’s failure to file a brief as a confession of the errors assigned by appellant, citing a previous decision to the same effect, Merrill v. Wheeler, 17 [370] Ariz. 348, 152 Pac. 859. In Rudd v. Wilson, 32 Okl. 85, Ann. Cas. 1914A, 485, 121 Pac. 252, the court said: “The failure of the defendants in error to appear or file any brief must be taken as a confession of the alleged errors, at least sufficient to warrant a reversal of the judgment.” The annotation' of Rudd v. Wilson, Ann. Cas. 1914A, is a review of the rule throughout the country, and the deduction is there made that the courts generally treat the neglect of the appellee to file a brief as an admission of the correctness of the errors assigned by the appellant. We have less hesitancy in following that rule in this case than otherwise, because in the two Arizona decisions above cited warning was given to the bar that such would be the action of this court upon a failure of the appellee to file a brief. The judgment is reversed and the cause remanded, with directions that action be taken in accordance herewith. McALISTER and FLANIGAN, JJ., concur.