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Tomlinson v. Gibson

Supreme Court of Arizona

February 26, 1940

CLIFFORD J. TOMLINSON, Appellant,
v.
J. B. GIBSON, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. Elbert R. Thurman, Judge. Judgment reversed and case remanded with instructions.

Mr. Frank Dykes and Mr. E. E. Selden, for Appellant.

No appearance for Appellee.

OPINION

[55 Ariz. 159] LOCKWOOD, J.

J. B. Gibson, hereinafter called plaintiff, brought suit against Clifford J. Tomlinson, Jess Cocklin and Virgil Cocklin, hereinafter called defendants, to recover damages for an alleged assault and battery. The actual assault was claimed to have been committed by the Cocklins, and it was sought to hold Tomlinson liable therefor, on the theory that he was the employer of the Cocklins at the time of the assault, and that they were acting in the due course of their employment in making it.

The case was tried to a jury which returned a verdict against the defendants, and each of them, and from the judgment on the verdict, defendant Tomlinson alone has appealed.

The abstract of record, transcript of testimony, and a brief with a number of assignments of error were filed by Tomlinson, but the plaintiff has not seen fit either to enter an appearance or file a brief in this court. We have examined defendant's brief, and it is evident that a debatable question is raised by the appeal, and no reasonable excuse has been shown for the failure of the plaintiff to appear or file an answering brief.

[55 Ariz. 160] We have had a situation like this before us in a number of cases, and have held that when, upon an examination of the record, it appears a debatable question is raised by the appeal, and no reasonable excuse is shown by the appellee for failing to appear and answer, we will assume that it is a confession of error by the appellee, and the case will be reversed and remanded for a new trial. Navarro v. State, 32 Ariz. 119, 256 P. 114, and other Arizona cases cited therein.

The judgment of the lower court is reversed as to the defendant Tomlinson, and the case remanded for a ...


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