Johnson v. White

• Decision Date: 24 January 1911
• Parties: JOHNSON v. WHITE et al.
• Court: Oregon Supreme Court

112 P. 1083

60 Or. 611

JOHNSON v. WHITE et al.

Supreme Court of Oregon

January 24, 1911

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Bill by Mary E. Johnson against Charles A. White and others. From the decree, George Wetherby defendant appeals, and moves for a decree for plaintiff's failure to file briefs. Motion denied.

Geo. P. Lent, for respondent.

PER CURIAM.

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 (91 P. 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 P. 128, 738.