Johnson v. White

Opinion Per Curiam. 1, 2. This is an equity suit. Defendant appeals. The abstract was filed November 21, 1910. Plaintiff failed to file his brief within 20 days thereafter as provided by rule 6 (50 Or. 572: 91 Pac. viii). Defendant, on December 28th, filed a motion to dismiss the complaint, and for a decree in his favor for the reason that plaintiff has not filed his brief within the time provided by rule 6. Plaintiff admits that he is in default, and has filed an affidavit showing a misconception by himself of rule 6, and a misunderstanding between opposing counsel as to who should file the first brief in an equity suit. But he filed his brief on January 7, 1911. Respondent’s failure to file a brief does not ipso facto entitle appellant to a reversal of the decree. The merits of the appeal must be determined even though respondent does not appear. His default at most is only a waiver of his right to be heard. Defendant’s motion must be denied, and by reason of the showing made by plaintiff he will be relieved from his default. Wood v. Fisk, 45 Or. 276 (77 Pac. 128, 738). Motion Denied.