Lawler v. Moran , 245 Miss. 301 ( 1963 )

245 Miss. 301 (1963) 148 So. 2d 198

LAWLER, et al.
v.
MORAN

No. 42416.

Supreme Court of Mississippi.

January 7, 1963.

William V. Murry, Hattiesburg, for appellants.

McGEHEE, C.J.

No brief has been filed by appellee in this case, nor has any reason for the failure to do so been assigned. Appellant filed a brief and certified that a true copy of the same had been delivered in due time to the attorney for appellee, postage prepaid to his usual place of abode.

(Hn 1) After carefully examining the record, we are of the opinion that there was abundant proof that appellant, H.H. Lawler, was entitled to the immediate possession of the sailboat in question in this replevin suit. The motion of the appellant for judgment notwithstanding the verdict should have been sustained.

(Hn 2) In the case of G.M. & O.R. Company v. Webster County, 194 Miss. 660, 13 So. 2d 644, it is said:

"The failure to file this brief (by the appellee) is tantamount to a confession of error, and will be accepted as such, and the judgment of the court below will be reversed, since an answer to the appellant's brief cannot be safely made by us, without our doing that which the appellee, by its attorney, should have done, i.e., brief the appellee's side of the case. This we are not called on to do, therefore the case falls within, and is governed by, W.T. Raleigh Co. v. Armstrong, 165 Miss. 380, 140 So. 527.

* * * * * *

"Reversed and judgment here for the appellant."

Reversed and judgment here for appellant.

Kyle, Ethridge, Gillespie and Rodgers, JJ., concur.