Brown v. Montgomery

• Decision Date: 11 March 1955
• Docket Number: No. 18576,18576
• Citation: 125 Ind.App. 395,125 N.E.2d 37
• Parties: Tull E. BROWN, Administrator of the Estate of Hattie R. Brown, deceased, Appellant, v. Claude MONTGOMERY, Appellee.
• Court: Indiana Appellate Court

Page 37

125 N.E.2d 37

125 Ind.App. 395

Tull E. BROWN, Administrator of the Estate of Hattie R Brown, deceased, Appellant, v. Claude MONTGOMERY, Appellee.

No. 18576.

Appellate Court of Indiana, In Banc.

March 11, 1955.

Howard R. Hooper, Indianapolis, for appellant.

Ernest E. Owens, Indianapolis, for appellee.

BOWEN, Judge.

The appellant's intestate filed suit against appellee for possession of real estate and damages, and for cancellation of a contract by which appellant had agreed to sell certain real estate to appellee.

The lower court found for the appellee and by its judgment held and determined that the appellee, Claude Montgomery, had tendered to Hattie R. Brown, or her agent, Tull E. Brown, each monthly payment on such contract as it became due, and that the appellant had refused to accept said payment. The court also held that the appellee, after suit was filed, offered and tendered the full amount due under the conditional sales contract upon the presentation to him of an abstract of title continued to date, and the same was refused by the appellant's intestate and her agent, Tull E. Brown, her husband. The court then entered the following judgment and conclusion: that plaintiff take nothing by her complaint, and that she accept from the defendant the payments heretofore tendered and refused which were due upon the contract sued upon, and that she furnish appellee an abstract of title to date to the real estate described in the complaint within a reasonable time, and that the appellant should allow the appellee to pay his contract in full in accordance with his tender.

The appellant filed his motion for a new trial, grounds of which motion were, error in the admission of certain evidence, alleged error of the court in refusing to strike out certain testimony, and that the decision of the court is not sustained by sufficient evidence and is contrary to law. The ground for the specification of error as to the alleged admission and rejection of evidence as to specifications 1, 2 and 3 is that the appellant claims no plea of payment had been filed, and specifications 4 and 5 are waived by reason of the fact that the appellant has not set forth in substance the objection to the evidence which appellant sought to strike out and exclude.

In this case the appellee has not filed an answer brief as required by Rule 2-15, Rules of Supreme Court. By reason of such rule, where appellant's brief makes a prima facie showing of reversible error, we may reverse the judgment. Consolidated Holding v. Anweiler, Ind.App. 1954, 122 N.E.2d 905; Meadows v. Hickman, 1947, 225 Ind. 146, 73 N.E.2d 343; 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. 861, 111 N.E. 8; Burroughs v. Burroughs, 1913, 180 Ind. 380, 103 N.E. 1. However, such rule is not invoked by our courts for the benefit of the appellants 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 appellants' brief makes a prima facie showing of reversible error. Meadows v. Hickman, supra; Hanrahan v. Knickerbocker, 1905, 35 Ind.App. 138, 72 N.E. 1137.

It therefore becomes necessary for us to consider whether or not appellant makes such prima facie showing of error.

The issues in this case were formed on appellant's amended complaint for the possession of real estate, damages, and for the cancellation of a certain contract to sell real estate by appellant, as seller, to appellee, as buyer. By the terms of the contract attached to the complaint, plaintiff agreed to pay for such real estate the sum of $2,000, with a down payment of $140 cash and $15 per month thereafter. The complaint alleged non-payment of the payments due under the contract, and alleged that appellee had forfeited his rights under the contract, and asked that the same be cancelled. The complaint also alleged that the appellant gave notice of such cancellation and demanded possession of the real estate. To appellant's complaint the appellee filed an answer in two paragraphs, the first in denial and an admission that the contract was entered into. In a second paragraph of answer appellee alleged that at all times, during the period mentioned in the complaint as to appellee being in arrears, he was ready, willing and able to make the payments and did tender to the plaintiff each month...