Newton v. Hunt

• Decision Date: 28 May 1957
• Docket Number: No. 18951,18951
• Citation: 127 Ind.App. 456,142 N.E.2d 643
• Parties: Herschel L. NEWTON, d/b/a Newton Gravel Company, Sole Proprietorship, Appellant, v. Cyril HUNT, d/b/a Hunt Furniture Company, Appellee.
• Court: Indiana Appellate Court

Page 643

142 N.E.2d 643

127 Ind.App. 456

Herschel L. NEWTON, d/b/a Newton Gravel Company, Sole Proprietorship, Appellant, v. Cyril HUNT, d/b/a Hunt Furniture Company, Appellee.

No. 18951.

Appellate Court of Indiana, In Banc.

May 28, 1957.

Robert S. Webb, Irene T. Webb, Paul G. Smith, Webb, Webb & Smith, Noblesville, for appellant.

Garrison & Castor, Noblesville, for appellee.

COOPER, Judge.

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 asserted 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, Ind.App.1957, 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, 118 Ind.App. 163, 77 N.E.2d 913; Pittsburgh, C.C. & St. L. 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 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.