Opinion
No. 18,951.
Filed May 28, 1957.
APPEAL — Briefs — Showing of Prima Facie Error — Failure of Appellee to File Brief. — A failure of appellee to file brief controverting errors asserted by appellant, where appellant makes prima facie showing of reversible error is tantamount to a confession of errors, and such rule is for protection of court and its exercise discretionary with court.
From the Hamilton Circuit Court, Tom R. White, Judge.
Appellee, Cyril Hunt, doing business as Hunt Furniture Co. recovered a judgment on complaint on account, and appellant, Herschel L. Newton, doing business as Newton Gravel Co., appeals.
Reversed. By the court in banc.
Robert S. Webb, Irene T. Webb, and Paul G. Smith, all of Noblesville, for appellant.
(No appearance for appellee).
This is an appeal from a judgment on a complaint on account.
The appellee has not filed a brief in support of the judgment of the trial court. Both the Supreme Court of Indiana and our court have adopted a rule that the failure of an appellee to file a brief controverting the errors by the appellant, where the appellant's brief makes a prima facie showing of reversible error, may be taken as a confession of such errors. In such cases, the judgment may accordingly be reversed and the cause remanded without prejudice to either party. This rule is not to be invoked nor has it been established for the benefit of the appellant, but for the protection of the court, and it has been repeatedly held that whether it is invoked is discretionary with the court. Lunsford v. Maida (1957) 127 Ind. App. 236, 140 N.E.2d 762; Associates Investment Co. v. Snyder (1949) 119 Ind. App. 20, 83 N.E.2d 622; Miller v. Julian (1904) 163 Ind. 582, 72 N.E. 588; Meadows v. Hickman (1947), 225 Ind. 146, 73 N.E.2d 343; Huffman v. Huffman (1947), 117 Ind. App. 601, 75 N.E.2d 172; Whallon v. Wood (1948), 188 Ind. App. 163, 77 N.E.2d 913; Pittsburgh etc. R. Co. v. Linder (1925), 195 Ind. 569, 145 N.E. 885; Bryant v. School Town of Oakland City (1930), 202 Ind. 254, 171 N.E. 378; 173 N.E. 268; Reed, Admr., v. Brown (1939) 215 Ind. 417, 19 N.E.2d 1015.
The appellant herein in support of its appeal from the judgment has filed a brief which, in our opinion, makes a prima facie showing of reversible error.
The judgment is reversed and the cause is remanded with instructions to sustain appellant's motion for a new trial.
NOTE. — Reported in 142 N.E.2d 643.