Bryant v. Sch. Town of Oakland City

• Decision Date: 22 May 1930
• Docket Number: No. 25817.,25817.
• Citation: 171 N.E. 378,202 Ind. 254
• Parties: BRYANT et al. v. SCHOOL TOWN OF OAKLAND CITY et al.
• Court: Indiana Supreme Court

202 Ind. 254

171 N.E. 378

BRYANT et al.

v.SCHOOL TOWN OF OAKLAND CITY et al.

No. 25817.

Supreme Court of Indiana.

May 22, 1930.

Appeal from Gibson Circuit Court; Claude A. Smith, Judge.

Action by Jesse F. Bryant and others against the School Town of Oakland City, and others. Judgment for defendants, and plaintiffs appeal.

Reversed.

Luther Benson, of Princeton, for appellants.

MARTIN, J.

The appellees have filed no brief in this case. The failure or inexcusable neglect of an appellee to file a brief in support of a judgment appealed from, and controverting the alleged errors complained of by appellant, may be deemed a confession of error, and the court is justified, in its sound discretion, either to determine the questions presented by the appellant's brief, or to reverse the judgment without prejudice to either party, without considering the appeal on its merits. Neu v. Town of Bourbon (1901) 157 Ind. 476, 62 N. E. 7;Burroughs v. Burroughs (1913) 180 Ind. 380, 103 N. E. 1, and cases cited below.¹ But the failure of an appellee to file a brief does not require a reversal, and the discretionary power of the court to reverse the judgment in such a case should not be exercised unless the appellant's brief makes an apparent or prima facie showing of reversible error. Hanrahan v. Knickerbocker (1905) 35 Ind. App. 138, 72 N. E. 1137;Goldberg v. Hauer (1924) 81 Ind. App. 23, 142 N. E. 125;Pittsburgh, etc., R. Co. v. Linder (1925) 195 Ind. 569, 145 N. E. 885, and cases cited below.²

From the appellants' brief it appears that the same question of law is presented here with reference to a lease contract made under the provisions of chapter 223, Acts 1927, for the construction of a school building as was presented and decided in Hively v. School City of Nappanee (1929 Ind. Sup.) 169 N. E. 51.

The appellants who are resident taxpayers brought this action to enjoin the school town of Oakland City, its school trustees, and the Oakland City School Realty Company from performing a lease contract, which is substantially identical with the contract considered in the Nappanee Case, from paying rentals under the contract, and from levying taxes to meet the obligations incurred by the contract, on the ground that the contract imposed an indebtedness on the school town in excess of 2 per cent. of the taxable property thereof in violation of section 1, art. 13, Const. The court overruled a demurrer to the complaint, and the issue was closed by an answer in general denial. The court heard the evidence and rendered judgment for the defendants, from which this appeal is taken, error being alleged in overruling appellants' motion for a new trial.

It appears from the evidence that the appellee board of school trustees received and examined a petition signed by more than fifty school patrons, found that the (school) facilities in the school town were insufficient to meet the needs of the school corporation, that it did not have sufficient funds with which to construct adequate and sufficient buildings, and that it could not “raise more than $50,000.00 by means of taxation owing to the constitutional limit of the amount of tax which can be assessed,” which sum was likewise insufficient to erect adequate buildings. The board thereupon “brought in a bond expert” and received and accepted a proposal of the Oakland City School Realty Company to erect a school building in accordance with its plans and specifications already adopted, and to enter into a contract “leasing said real estate and the buildings to be erected for a period of thirty (30) years at an annual rental of not to exceed ten per cent. (10%) of the cost of said building and the real estate and upon the further consideration of your agreeing to the payment of the upkeep of said building during the term for which said lease may be entered into and upon the further consideration that you pay the insurance on said building during said term, taxes and all other charges imposed thereon.”

The lease which was introduced in evidence provided for annual payments by the school town to the building company of $8,000 per year for the first three years, $9,000 per year for the next three years, and $10,000 per year for the next twenty-four years. There was evidence that the school town was already indebted in the sum of about $5,000 (that the town indebtedness was $24,000), and that the net taxable property of the town is $2,136,075.

In Hively v. School City of Nappanee, supra, we considered at length the form of contract which was used here, and stated the reasons why such a contract created a present indebtedness on behalf of the school corporation for the total amount to be paid under the contract. The amount of indebtedness provided for in the contract under consideration here being in excess of the constitutional limit, such contract is void.

The judgment of the trial court in favor of the appellees is therefore not sustained by sufficient evidence, is contrary to law, and the same is reversed.

1Berkshire v. Caley (1901) 157 Ind. 1, 60 N. E. 696;People's Nat. Bank v. State ex rel. Emerson (1902) 159 Ind. 353, 65 N. E. 6;Union Trac. Co. v. Forst (1904) 162 Ind. 567, 70 N. E. 979;Moore v. Zumbrum (1904) 162 Ind. 696, 70 N. E. 800;Miller v. Julian (1904) 163 Ind. 582, 72 N. E. 588;State ex rel. McGuver v. Huff (1909) 172 Ind. 1, 87 N. E. 141, 139 Am. St. Rep. 355;Eigelsbach v. Kanne (1915) 184 Ind. 62, 110 N. E. 549;Huddleston v. Huddleston (1916) 184 Ind. 168, 110 N. E. 980;Veit v. Vindhorst (1915) 184 Ind. 351, 110 N. E. 666;Boring v. Chicago, etc., R. Co. (1916) 185 Ind. 46, 113 N. E. 294;City of Shelbyville v. Adams (1916) 185 Ind. 326, 114 N. E. 1;Deatrick v. Lawless (1923) 193 Ind. 327, 139 N. E. 587;Cobe v. Malloy (1909) 44 Ind. App. 8, 88 N. E. 620;Wysong v. Sells (1909) 44 Ind. App. 238, 88 N. E. 954;Moore & Richter Lumber Co. v. Scheid (1918) 68 Ind. App. 694, 121 N. E. 91;Peter Hand Brewing Co. v. Stamper (1919) 71 Ind. App. 351, 124 N. E. 876;Pope v. State (1920) 72 Ind. App. 400, 125 N. E. 908;Union Trac. Co. v. Wolf (1920) 73 Ind. App. 392, 127 N. E. 564;Roberts v. Fesler (1920) 74 Ind. App. 333, 128 N. E. 359; C., T. H. & S. E. R. Co. v. Grimes (1921) 75 Ind. App. 83, 129 N. E. 705...