Sheldmyer v. Bias
| Decision Date | 22 December 1942 |
| Docket Number | 16924. |
| Parties | SHELDMYER v. BIAS et al. |
| Court | Indiana Appellate Court |
Leslie R. Naftzger and William L. Naftzger, both of Kokomo, for appellant.
No appearance for appellees.
The appellant, as plaintiff, instituted an action in the court below against the appellees, as defendants. By the first paragraph of his complaint he sought a decree for a specific performance of an alleged contract for the conveyance of real estate, and by the second paragraph he sought to recover damages in an amount equal to the value of the real estate because of the alleged failure of Maud Sheldmyer, deceased and her heirs at law, to execute to him a deed for the real estate in question. The complaint alleged that the contract for the conveyance of the real estate was made by the appellant and his aunt, Maud Sheldmyer, who died before performance thereof. The appellee, Union Bank and Trust Company, is the administrator of the estate of Maud Sheldmyer, deceased, and the appellees, James Bias, Isabel Dingeldine and Elizabeth Maher, were, at the time of her death, her sole and only heirs at law.
The trial court sustained a demurrer for insufficiency of facts to each paragraph of the complaint, and the appellant has appealed from the judgment that was rendered against him upon his refusal to plead further.
The appellees have failed to file any brief in support of the judgment of the court below, and the appellant is asking for reversal because of such neglect.
Generally, the failure of appellees to file a brief in support of a judgment in their favor is considered as equivalent to a confession of error, warranting, although not requiring, a reversal. Bryant v. School Town of Oakland City, 1930, 202 Ind. 254, 171 N.E. 378, 173 N.E. 268; Brayton v. City of Rushville, 1918, 68 Ind.App. 238 120 N.E. 48; Gilbert v. Harges, 1936, 101 Ind.App 394, 199 N.E. 424.
The failure or inexcusable neglect of an appellee to file a brief in support of a judgment from which an appeal has been taken may be deemed a confession of error, and an Appellate Court is justified, in its sound discretion, in determining the questions presented by the appellant's brief, or in reversing the judgment without considering the merits of the appeal. 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 should not be exercised unless the appellant's brief makes an apparent or prima facie showing of reversible error. Bryant v. School Town of Oakland City, supra; Hanrahan v. Knickerbocker, 1905, 35 Ind.App. 138, 72 N.E. 1137; Golberg v. Hauer, 1924, 81 Ind.App. 23, 142 N.E. 125; Pittsburg, etc., R. Co. v. Linder, 1925, 195 Ind. 569, 145 N.E. 885.
When the record is simple and without complication, and in such condition that it can be conveniently examined, and the claimed error or errors presented by the brief of the appellant are of such a nature that we can safely pass upon them without the assistance of a brief from the appellee, then, despite the default of the appellee, we feel that we owe a duty to the court below to consider the merits of the appeal, and not to increase its work by a reversal, without consideration.
The first paragraph of appellant's complaint alleged facts for the purpose of showing that appellant and his aunt, Maud Sheldmyer, made an oral agreement, and that by the terms thereof the appellant was to live with her at her home, and was to aid her in the handling of her property and business affairs. In consideration for such services she was to deed to him certain real estate in the city of Kokomo, Indiana, described as Lots 5 and 6 in Boulevard Park Addition to such city. The complaint further alleged that the aunt died suddenly as the result of an accident without having made such deed, but after the appellant had fully complied with those portions of the agreement that were to be performed by him. By this paragraph the appellant sought to require Elizabeth Maher, James Bias and Isabel Dingeldine, and the wife of James Bias and the husband of Isabel Dingeldine, to execute to the plaintiff a proper deed to the particular real estate and upon their failure to do so the pleading asked that a commissioner be appointed to make such conveyance.
By the second paragraph of complaint the appellant set forth facts showing the same agreement, but instead of seeking specific performance he alleged that by reason of the failure of his aunt to execute the deed, and the failure and refusal of the brother and sisters of the aunt to execute a deed after her death, that he had been damaged in the amount equal to the value of the property and its rents and profits, and he asked a judgment against James Bias, Elizabeth Maher, Isabel Dingeldine, and the Union Bank and Trust Company, as administrator of the estate of Maud Sheldmyer, deceased, in the amount of $5,500, and that the court order the administrator to pay such sum out of the estate of Maud Sheldmyer, deceased, or to order contributions made by the defendants, James Bias, Elizabeth Maher and Isabel Dingeldine, as heirs of Maud Sheldmyer, deceased, or require the administrator to sell all or any of the property of which Maud Sheldmyer died the owner, as might be necessary for the purpose of satisfying such judgment.
In each paragraph of complaint, in addition to the facts showing the oral agreement between appellant and Maud Sheldmyer, the appellant is relying upon a letter written to him by his aunt while he was in California, as constituting a sufficient memorandum under the statute of frauds to evidence the agreement. This letter was as follows:
The statute of frauds (Sec. 33-101, Burns' 1933; Sec. 8363, Baldwin's 1934) prohibits action on any contract for the sale of lands, "unless the promise, contract or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, * * *"
In the recent case of Block v. Sherman, Ind.App. 1941, 34 N.E.2d 951, 955, we point out that a memorandum, in order to make enforceable a contract within the statute, must state with reasonable certainty the...
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Sheldmyer v. Bias, 16924.
...112 Ind.App. 52245 N.E.2d 347SHELDMYERv.BIAS et al.No. 16924.Appellate Court of Indiana, in Banc.December 22, Appeal from Howard Circuit Court; Forrest E. Jump, Judge. Action by John J. Sheldmyer, Jr., against James Bias and others for specific performance of an alleged contract for conveya......