Board of Com'rs of Clark County v. Peyton

• Decision Date: 21 October 1955
• Docket Number: No. 18636,18636
• Citation: 129 N.E.2d 372,125 Ind.App. 643
• Parties: BOARD OF COMMISSIONERS OF the COUNTY OF CLARK, known also in this cause as: Board of Commissioners, Clark County, Indiana, The Board of Commissioners of Clark County, Indiana, The Clark County Board of Commissioners, Board of Commissioners of Clark County, Indiana, and as Clark County, Indiana, Appellant, v. J. Thomas PEYTON, Appellee.
• Court: Indiana Appellate Court

Page 372

129 N.E.2d 372

125 Ind.App. 643

BOARD OF COMMISSIONERS OF the COUNTY OF CLARK, known also in this cause as: Board of Commissioners, Clark County Indiana, The Board of Commissioners of Clark County Indiana, The Clark County Board of Commissioners, Board of Commissioners of Clark County, Indiana, and as Clark County Indiana, Appellant, v. J. Thomas PEYTON, Appellee.

No. 18636.

Appellate Court of Indiana, In Banc.

Oct. 21, 1955.

Jonas G. Howard, Jeffersonville, Paul R. Schnaitter, Madison, for appellant.

McBride & Smith, Jeffersonville, for appellee.

BOWEN, Judge.

This is an appeal from a judgment in an action based upon a claim filed by the appellee and denied by the appellant, Board of Commissioners of Clark County, Indiana. Issues were joined upon the claim of appellee and the judgment of the Commissioners denying it. Trial was had by the court and the court rendered judgment for appellee in the sum of $800 and costs.

Following the filing of the transcript and briefs by the appellant in this cause, appellee's counsel, Claude B. McBride, filed a verified petition with this court in which it is stated that the appellee has decided not to defend this appeal and such counsel asked permission to withdraw from such case, which permission was granted by this court.

The record shows that no answer brief on behalf of appellee has been filed as required by Rule 2-15, Rules of the Supreme Court. The failure of an appellee to file a brief may be deemed to be a confession of such errors asserted by appellant and the cause may be remanded without prejudice to either party. As it has been repeatedly stated, this rule is not for the benefit of the appellant but for the protection of the court, and whether it shall be invoked is discretionary with the court and such rule is applied only where the appellant's brief makes a prima facie showing of reversible error. As stated by our Supreme Court in several cases:

'Another cogent reason for invoking this rule is that the time of the court should be devoted to cases that are properly briefed. Litigants who are making a good-faith effort to help the court should not be delayed while this court attempts to perform the duties of counsel.'

Roth v. Vandalia R. Co., 1918, 187 Ind. 302, 119 N.E. 1; Meadows v. Hickman, 1947, 225 Ind. 146, 73 N.E.2d 343; Consolidated Holding v. Anweiler, Ind.App.1954, 122 N.E.2d 905; State ex rel. Board, etc., v. Stucker, 1953, 232 Ind. 76, 111 N.E.2d 714; Reed v. Brown, 1939, 215 Ind. 417, 19 N.E.2d 1015. See also Deatrick v. Lawless, 1923, 193 Ind. 327, 139 N.E. 587; City of Shelbyville v. Adams, 1916, 185 Ind. 326, 114 N.E. 1; Brown v. State, 1915, 184 Ind. 254, 108 N.E....