Stuck v. Town of Beech Grove

Decision Date25 October 1928
Docket NumberNo. 25230.,25230.
Citation163 N.E. 487
PartiesSTUCK et al. v. TOWN OF BEECH GROVE et al.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Marion County; Sidney S. Miller, Judge.

Action by Frank Stuck and another against the Town of Beech Grove and others. Judgment for defendants, and plaintiffs appeal. Affirmed.T. Ernest Maholm, of Indianapolis, Cheney & Tolen, of Shelbyville, and Grier M. Shotwell, Fred Bates Johnson, and Earl B. Barnes, all of Indianapolis, for appellants.

Chas. E. Cox, of Indianapolis, for appellees.

MARTIN, J.

[1] The parties to this appeal are the same as in No. 25227, Stuck et al. v. Town of Beech Grove (Ind. Sup. 1928) 163 N. E. 483. The appellants herein sought to enjoin appellees from enforcing the same ordinances that are involved in the other case, not upon the ground that the ordinances were unreasonable, but on the alleged ground that they encroached on the jurisdiction of the Public Service Commission. Some conclusions of the pleader to the effect that the second “ordinance is unconstitutional, arbitrary and unreasonable and beyond the power of the town board and therefore void” were set out in the complaint, but no facts were alleged to show wherein the ordinance was unreasonable, etc. These conclusions, being conclusions of law and not of fact, are not covered by section 360 Burns 1926 which authorizes the pleading of conclusions subject only to a motion to make more specific, Central Bank, etc., v. Martin (1919) 70 Ind. App. 387, 394, 121 N. E. 57; Cin., I. & W. R. Co. v. Little (1921) 190 Ind. 662, 668, 131 N. E. 762, and they must be disregarded, Public Service Commission v. City of Indianapolis (1923) 193 Ind. 37, 61, 137 N. E. 705. The trial court sustained a demurrer to appellants' complaint, and, upon their refusal to plead further, rendered judgment against them.

[2] We have held, in the other case, that ordinances designating the streets within a municipality upon which busses may operate, or prohibiting their operation on certain streets, do not encroach upon the jurisdiction of the Public Service Commission over motorbus common carriers, so long as the ordinances do not prevent or unreasonably interfere with the utility's operation under the certificate or franchise granted by that commission, and it follows that the trial court correctly sustained the demurrer to the complaint.

[3][4] 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 the 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 appellants' 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

No error is presented by appellants' brief in the case at bar. The errors assigned are that the court erred in sustaining the demurrer to the complaint and in sustaining appellee's motion to dissolve a temporary injunction which had been granted to appellants, and the points and authorities cited by appellants go only to unreasonableness of the ordinance,which was not in issue under the pleadings.

Judgment affirmed.

MYERS, C. J., absent.

* Superseded by opinion, 166 N. E. 153.

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3 cases
  • Stuck v. Town of Beech Grove
    • United States
    • Indiana Supreme Court
    • October 25, 1928
  • Stuck v. Town of Beech Grove
    • United States
    • Indiana Supreme Court
    • October 25, 1928
    ...them. An appeal (No. 25230) taken from such judgment is affirmed concurrently with the decision herein. Frank Stuck et al. v. Town of Beech Grove et al. (Ind. Sup. 1928) 163 N. E. 487. [2][3] In the complaint in that case, the alleged fact of the unreasonableness of the Beech Grove ordinanc......
  • Stuck v. Town of Beech Grove, 25230.
    • United States
    • Indiana Supreme Court
    • April 18, 1929
    ...and others against the Town of Beech Grove and others. Judgment for defendants, and plaintiffs appeal. Affirmed. Superseding opinion, in 163 N. E. 487.T. Ernest Maholm, of Indianapolis, Cheney & Tolen, of Shelbyville, and Grier M. Shotwell, Fred Bates Johnson, and Earl B. Barnes, all of Ind......

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