Kuykendall v. County Com'rs of Marion County
Decision Date | 19 March 1968 |
Docket Number | No. 20504,No. 2,20504,2 |
Parties | Willard KUYKENDALL, Clifford Richmann, Robert E. Buchanan, Appellants, v. The COUNTY COMMISSIONERS OF MARION COUNTY, Indiana, the Board of Zoning Appeals of Marion County, Indiana, Harry Kemlo, Sarah Kemlo, and John Chittenden, Appellees |
Court | Indiana Appellate Court |
Richard J. Hartman, Indianapolis, for appellants.
Nick G. Ricos, George A. Rubin, Indianapolis, for appellees.
Appellants brought this action for Writ of Certiorari to review a decision of the Board of Zoning Appeals of Marion County, Indiana, which granted a variance of zoning to permit the construction of a mobile homes or trailer park.
Trial to the court resulted in judgment in favor of appellees. The error assigned here is the overruling of appellant's motion for a new trial. The only proper specifications of that motion are that (1) the decision of the court is not sustained by sufficient evidence, and (2) the decision of the court is contrary to law.
Appellees did not file an answer brief. Our courts of appeal have uniformly held that, in the event the appellee fails to file an answer brief, it is only necessary for the appellant to demonstrate a prima facie case of reversible error. Newton d/b/a, etc. v. Hunt d/b/a, etc. (1957, 127 Ind.App. 456, 142 N.E.2d 643; Wertzberger, Admr., etc. v. Herd et al. (1957), 128 Ind.App. 85, 140 N.E.2d 771, 146 N.E.2d 115; Sunn v. Martin (1959), 130 Ind.App. 29, 161 N.E.2d 487; 2 I.L.E., Appeals, § 394, p. 275; 3 Wiltrout Ind.Civ.Proc., Briefs, § 2682, p. 427.
The question to be determined is whether the appellants have made a prima facie showing of reversible error in their brief.
In all cases appealed to this court there is a presumption that the trial court correctly decided the questions presented. It is incumbent upon the appellants to rebut this presumption in their brief by clearly showing that the trial court committed serious error which denied the relief to which they were entitled under the law.
The argument portion of appellants' brief contains only their opinions and conclusions as to the weight to be given to the evidence before the trial court. The appellants have cited two cases in their brief, neither of which apply to this case but do contain correct statements of the law, namely:
'* * * if the court and jury were deceived by his conduct at the trial into believing that he was helpless, a...
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