Opinion
Civil No. 3635.
Filed September 21, 1936.
APPEAL AND ERROR. — Where plaintiff appealed from order granting defendant a new trial and filed five assignments of error, which raised debatable question, and defendant without reasonable excuse entered no appearance and filed no answering brief, order for new trial held set aside.
See 2 Cal. Jur. 722; 3 Am. Jur. 330.
APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Cause remanded, with instructions.
Messrs. Favour Baker and Mr. A.M. Crawford, for Appellant.
Mr. J.E. Russell, for Appellee.
Plaintiff brought this action against defendant on two policies of insurance issued by the defendant covering the life of May Welch, the wife of plaintiff. The case was in this court once before ( 44 Ariz. 198, 36 P.2d 256) and was sent back for a new trial. At the new trial judgment was rendered in favor of plaintiff. A motion for new trial was duly made and by the court granted, and this appeal is taken from the order granting the new trial.
Counsel for plaintiff have filed the record and a brief which contains five assignments of error grouped under three propositions of law. These assignments have been elaborately argued. Notwithstanding this, defendant has not seen fit to enter an appearance in this court, much less file a brief answering the brief of the plaintiff. In the case of Navarro v. State, 32 Ariz. 119, 256 P. 114, we said as follows:
"This court has held previously in several cases that a failure to file an answering brief is equivalent to a confession of error by appellee. Merrill v. Wheeler, 17 Ariz. 348, 152 P. 859; Childs v. Frederickson, 21 Ariz. 248, 187 P. 573; Skelsey v. Kuhn, 23 Ariz. 367, 203 P. 1082; Hatch v. Leighton et al., 24 Ariz. 300, 209 P. 300.
"While we do not lay down as a rigid rule that in all such cases the judgment of the lower court will be reversed, yet, when on examination of the pleadings and the assignments of error it appears a debatable question is raised by the appeal, and no reasonable excuse for appellee's failure to file a brief is shown, we assume the latter confesses error, and will reverse the case and remand it for new trial. Paragraph 1266, Rev. Stats. Ariz. 1913, Civil Code."
The rule laid down in the Navarro case was later affirmed in the case of Adkins v. Adkins, 39 Ariz. 530, 8 P.2d 248.
Accepting the rule laid down in these cases, since a debatable question has been raised by the plaintiff on this appeal, and no reasonable excuse is shown for the defendant's failure to appear and file a brief, the order granting a new trial is set aside and the case remanded for further proceedings in accordance with the law.
McALISTER and ROSS, JJ., concur.