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Steves Bros. Const. Co. v. Lipinski

Supreme Court of Arizona

July 10, 1961

STEVES BROTHERS CONSTRUCTION CO., Appellant,
v.
J. P. LIPINSKI, Stella Lipinski and Helen Choisser, Appellees.

In Banc.

[89 Ariz. 402] Jack M. Anderson and C. Edwin Thurston, Phoenix, for appellant.

Joseph R. Babbitt, Jr., Flagstaff, for appellees.

PER CURIAM.

This action was commenced in the Superior Court of Coconino County by appellees as the owners of certain lots in Pine Park Manor for damages for collecting rain waters and discharging them upon appellees' land. The trial was had before a jury which returned a verdict in favor of appellant and against the appellees. Thereafter, the court below entered an order granting appellees' motion for a new trial without specifying with particularity the ground or grounds as required by Rules of Civil Procedure, Rule 59(m), 16 A.R.S. From the order granting a new trial this appeal has been perfected.

It has been the practice of this Court that where the ground or grounds for granting a new trial have not been specified to order the record returned to the court below for compliance therewith. However, in the instant case appellees have failed to enter their appearance in this Court and have not filed an answering brief in response to appellant's brief. Under such circumstances this Court is committed to rule that we will assume the failure to file an answering brief is a confession of reversible error. State v. Sanders, 85 Ariz. 217, 335 P.2d 616; Stover v. Kesmar, 84 Ariz. 387, 329 P.2d 1107; Dowding v. Smithers, 82 Ariz. 261, 311 P.2d 967; Schreyer v. Schreyer, 82 Ariz. 333, 313 P.2d 402; Farrell v. Cooper, 80 Ariz. 278, 296 P.2d 953; Mower v. Street, 79 Ariz. 282, 288 P.2d 495.

Page 585

The order of the court below granting appellees' motion for a new trial is reversed with directions that judgment be entered on the jury's verdict in ...


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