Newton D/B/a, Etc. v. Hunt D/B/a, Etc.

127 Ind. App. 456 (1957)

142 N.E.2d 643

NEWTON, DOING BUSINESS AS NEWTON GRAVEL COMPANY v. HUNT, DOING BUSINESS AS HUNT FURNITURE COMPANY.

No. 18,951.

Court of Appeals of Indiana.

Filed May 28, 1957.

Robert S. Webb, Irene T. Webb, and Paul G. Smith, all of Noblesville, for appellant.

(No appearance for appellee).

COOPER, J.

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 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 *457 v. Maida (1957) 127 Ind. App. 236, 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), 188 Ind. App. 163, 77 N.E.2d 913; Pittsburgh etc. 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, Admr., 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.

NOTE. Reported in 142 N.E.2d 643.