W. T. Raleigh Co. v. Armstrong, 29820

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Griffith, J.
• Citation: 140 So. 527,165 Miss. 380
• Parties: W. T. RALEIGH CO. v. ARMSTRONG et al
• Decision Date: 28 March 1932
• Docket Number: 29820

140 So. 527

165 Miss. 380

W. T. RALEIGH CO.
v.
ARMSTRONG et al

No. 29820

Supreme Court of Mississippi

March 28, 1932

Division B

1. APPEAL AND ERROR.

Presumption on appeals is that judgment is correct.

2. APPEAL AND ERROR.

Judgment, in absence of brief or oral argument by appellees, will be reversed without prejudice, where appellant's brief is fairly convincing of error.

3. APPEAL AND ERROR.

Appellate court, in absence of brief or oral argument by appellee, may accept appellant's brief as confessed, and reverse, or reverse without prejudice when not convinced from examination of record that judgment is correct.

HON. THOS. J. JOHNSTON, Judge.

APPEAL from circuit court of Alcorn county, HON. THOS. J. JOHNSTON, Judge.

Action between the W. T. Raleigh Company and A. L. Armstrong and others. Judgment for the latter, and the former appeals. Reversed and remanded.

Reversed and remanded.

W. C. Sweat, of Corinth.

Brief of counsel addressed to merits of the case.

OPINION

[165 Miss. 381] Griffith, J.

No brief has been filed by appellees in this case, nor was there any oral argument. Appellant has filed a brief which in all respects complies with the rules, and which, upon the statement of the facts and the application of the principles of law to the facts, is fairly convincing, in the absence of any reply thereto, that there is error in the judgment. We have examined the record, and, although the presumption is that the judgment is correct, it is not apparent to us from the record, in the light of appellant's brief, that the judgment is in fact correct. In this situation, the judgment must be reversed without prejudice.

There seems to be no uniform rule of procedure in the various appellate courts of the several states as to what shall be done when the appellee makes no oral argument and files no brief. Some of them hold that such default on appellee's part will be taken as a confession of the errors assigned and of the statement of facts, and citations of law, in appellant's brief and argument, and the judgment will thereupon be reversed as a matter of course. Other courts have said that they will to an extent disregard the default of the appellee and will determine the case on the merits; but even those courts have generally said that they will not devote any extended or laborious efforts to search out from the record the facts or the theories upon which an affirmance may be based, and have called...