Opinion
No. 29,858.
Filed April 26, 1960.
1. APPEAL — Briefs — Appellee Fails To File Brief — Prima Facie Showing of Error. — Where appellee has not filed a brief on appeal the Supreme Court may properly consider whether appellants have made a prima facie showing of error in their brief. p. 445.
2. APPEAL — Petition To Vacate Street — Evidence — Credibility of Witnesses — Conflicting Evidence Cannot Be Weighed — Prima Facie Showing — Contrary to Law. — Although the Supreme Court cannot determine the credibility of witnesses nor weigh conflicting evidence, appellants have made a prima facie showing that the testimony of appellants' five witnesses fully sustained the instant petition to vacate a street and such evidence was not rebutted by the testimony of the only two witnesses for appellee and remonstrators who testified solely as to irrelevant matters in the case, and therefore the decision of the trial court in favor of appellee was contrary to law. p. 445.
From the Benton Circuit Court, Everett L. West, Judge.
Appellants, Roy A. Berry and Burnita Berry, brought action in the lower court to vacate a portion of a street in the Town of Fowler, Indiana. From a judgment for appellee, Town of Fowler, appellants appeal.
Reversed.
Karl M. Jacobs, of Fowler, for appellants.
W. Douglas Elwood and Hawkins Elwood, of Fowler, for appellee.
Appellants brought action in the lower court pursuant to Burns' § 48-903 (1950 Replacement), et seq., to vacate a portion of a street in the town of Fowler, Indiana. Appellee town was made a defendant and filed answer and remonstrance. Notice was given to the abutting landowners as provided by Burns' § 48-909 (1950 Replacement), each of whom appeared and filed remonstrance.
Acts 1907, ch. 279, § 3, p. 617.
Acts 1907, ch. 279, § 9, p. 617; 1927, ch. 181, § 1, p. 536; 1951, ch. 73, § 1, p. 179.
Trial was had before the court resulting in a finding and judgment for appellee. Appellants' motion for new trial was overruled.
Appellants appeal from the judgment to this Court contending the decision of the court below was contrary to law and not sustained by sufficient evidence.
Appellee has not filed brief on this appeal, and under the established decisions of the state, in determining this appeal, we may properly consider whether appellants have made a 1. prima facie showing of error in their brief. See: 2 West's Ind. Law Encyl., "Appeals," § 394, and cases therein cited.
Appellants contend in substance that the evidence introduced in support of the petition to vacate has fully sustained each of the material averments of the petition or complaint by uncontradicted evidence and that no evidence having been offered in contravention thereof the general finding against appellants is contrary to law and will compel a reversal.
From an examination of the record evidence we agree with appellants' contention that the evidence was of such a character that the court below of necessity could only have found for appellants on their petition to vacate.
Although we cannot determine the credibility of witnesses or weigh conflicting evidence, appellants have made a prima facie showing that the testimony of appellants' five witnesses 2. fully sustained the petition to vacate and such evidence was not rebutted by the testimony of the only two witnesses for appellee and remonstrators who testified solely as to irrelevant matters in the case. It therefore is our conclusion that the decision of the lower court was contrary to law. See: Egbert v. Egbert (1948), 226 Ind. 346, 352, 80 N.E.2d 104; Wright v. Peabody Coal Co. (1948), 225 Ind. 679, 77 N.E.2d 116.
Judgment reversed with directions to sustain the motion for new trial.
Achor, J., not participating because of illness.
NOTE. — Reported in 166 N.E.2d 333.