Commonwealth, Department of Highways v. Win-Belt Co. , 386 S.W.2d 721 ( 1965 )

HILL, Judge.

The appellee, Win-Belt Company, a corporation, filed this suit in the Fayette Circuit Court seeking an injunction against the appellant, Commonwealth of Kentucky, Department of Highways, to prevent the erection of a fence along a right-of-way being sought in a condemnation proceeding then pending in the Fayette Circuit Court. The trial judge granted the relief sought and enjoined the Highway Department from erecting the fence. The Highway Department appealed to this court and filed brief on behalf of the appellant on April 24, 1963.

The appellee, Win-Belt Company, has filed no brief in this court. No word has been heard from the appellee since April 7, 1964. The controversy may have been resolved in the condemnation case. We have no information.

RCA 1.260, provides:

“If the appellee fails to file his brief within the time prescribed the court may:

“(1) accept appellant’s statement of the facts and issues as correct; or

“(2) reverse the judgment if appellant’s brief appears reasonably to sustain such action; or

“(3) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.”

We invoke subsection (3) of this rule. The judgment of the Fayette Circuit Court is reversed with directions to dissolve the injunction and dismiss the action.