Opinion
No. 2 CA-CIV 228.
August 2, 1966.
Condemnation action. The Superior Court, Cochise County, Civil Case No. 22568, Lloyd C. Helm, J., denied motion to set aside default judgment entered against landowners, and they appealed. The Court of Appeals, Krucker, C.J., held that debatable issues were raised by appeal on ground that failure to file timely answer was due to misunderstanding between attorneys and court would assume that failure of state to file an answering brief constituted a confession of reversible error.
Reversed.
Dunseath, Stubbs Burch, By G. Eugene Isaak, Tucson, for appellants.
Lesher, Scruggs, Rucker, Kimble Lindamood, By William E. Kimble, Tucson, for appellee.
On March 4, 1965, the State of Arizona filed a condemnation action in the Superior Court of Cochise County, Arizona, in which the appellants, Mr. and Mrs. Gallatin, were named as defendants. On the same day, an order to show cause for immediate possession was also issued setting the 15th day of March, 1965, as the hearing date.
On March 15, 1965, the court issued an order for immediate possession without notice to the Gallatins since the summons and complaint and order to show cause had not been served.
The appellants' brief indicates the following occurred:
On April 6, 1965, the Gallatins were served with a summons and complaint and they contacted an attorney who thereafter consulted with another attorney. Due to a misunderstanding between these attorneys, an answer was not filed and default and default judgment were entered against the Gallatins. Shortly thereafter, the Gallatins became aware of this fact and contacted their attorney, who immediately filed an answer and motion to set aside the entry of default and default judgment. The motion was denied and another motion to set aside the entry of default and default judgment was thereafter filed, which motion was also denied, resulting in this appeal.
Although the appellants have filed an extensive opening brief, the appellee has failed to file a brief in this action. At the expiration of the time allotted for the appellee to file an answering brief in accordance with Rule 5(f), Arizona Rules of the Supreme Court, 17 A.R.S., the appellants moved to submit the case for decision in accordance with Rule 7(a) (2), Arizona Rules of the Supreme Court, 17 A.R.S. No opposition to this motion was received and this Court entered an order on July 1, 1966, granting the appellants' motion for submission for decision. A subsequent motion to set aside this order has been denied by this Court for reasons stated in the order of denial.
Our Supreme Court, in a long line of decisions, has established the doctrine that where debatable issues were raised by an appeal, that Court would assume that the failure to file an answering brief constituted a confession of reversible error on the part of the appellees. Tiller v. Tiller, 98 Ariz. 156, 402 P.2d 573 (1965), and cases cited therein. We believe that debatable issues have been raised in this appeal and in accordance with this doctrine, this Court will assume that the failure of the appellee to file an answering brief constitutes a confession of reversible error.
See Avery v. Calumet Jerome Copper Co., 36 Ariz. 239, 284 P. 159 (1930), which we believe is analogous to the case before us.
Judgment reversed.
HATHAWAY and MOLLOY, JJ., concurring.