Lunsford v. Maida

127 Ind. App. 236 (1957)

140 N.E.2d 762

LUNSFORD v. MAIDA.

No. 18,917.

Court of Appeals of Indiana.

Filed March 6, 1957.

Sylvan W. Tackitt, of Bloomington, for appellant.

George Earl Huntington, of Bloomington, for appellee.

BOWEN, C.J.

This is an appeal from a judgment in *237 an action to determine the parentage of a child born out of wedlock.

The appellee has not filed a brief in support of the judgment of the trial court. The rule is well established that the failure of an appellee to file a brief controverting the errors asserted, where the appellant's brief makes a prima facie showing of reversible error, may be taken as a confession of such errors. This rule has not 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. Associates Inv. 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, Adm'r. v. Brown (1939), 215 Ind. 417, 19 N.E.2d 1015.

In the instant case, the appellant's brief sets forth evidence in the record which shows admissions of appellee that he had intercourse with the appellant, and an admission that he could be the father of the child. The matter of the determination of paternity is, in any case, a matter of grave concern to society, and to the life and rights of the infant child.

From an examination of the appellant's contentions set forth in the briefs, this court is of the opinion that a prima facie showing of error has been made, and this cause is therefore reversed and remanded without prejudice to either party, and with instructions to sustain appellant's motion for a new trial.

NOTE. Reported in 140 N.E.2d 762.