Opinion
No. 18,218.
Filed October 5, 1951.
1. APPEAL — Briefs — Failure of Appellee To File Brief — Effect. — Where an appellee fails to file a brief, the Appellate Court may reverse the judgment upon a prima facie showing of error by the appellant. p. 565.
2. DIVORCE — Defenses — Condonation — Defense Not Presentable by Plea in Abatement. — In an action for divorce a defense that the parties lived together for two or three days after the commencement of the action was a plea in bar, for it was, in effect, a defense of condonation, and the issues should have been heard and determined when the cause was tried on the question presented by the complaint for divorce at a time at least sixty days after the issuance of summons, rather than nine days after the commencement of the action at a hearing on defendant's plea in abatement. Burns' 1946 Replacement (1951 Supp.), § 2-1905. p. 565.
From the Superior Court of Marion County, Room No. 2, Hezzie B. Pike, Judge.
Action by Clifford A. Baker against Vera E. Baker for a divorce. From a judgment abating the action, plaintiff appeals.
Reversed with instructions. By the court in banc.
T. Ernest Maholm, of Indianapolis, for appellant.
Lawrence C. Ammon, of Indianapolis, for appellee.
Appellant brought this action May 1, 1951 for divorce against appellee in the Superior Court of Marion County, Room No. 2. To the complaint appellee filed a pleading which she denominated a "Motion to Abate and Dismiss Plaintiff's Action," in which she alleged that the parties hereto lived and cohabited together as husband and wife for two or three days after this action was commenced. Appellant filed an answer in denial. On May 9, 1951 the Court heard evidence on the issues presented by appellee's motion. On May 16, 1951 it entered judgment abating this action. From that judgment appellant has brought this appeal.
The appellee petitioned this Court for an extension of time to file her brief herein. This petition was granted. However, appellee did not file a brief. Therefore, if appellant has 1. made a prima facie showing of error we may reverse.
In our opinion appellee's motion was a plea in bar and not a plea in abatement. It, in effect, pleaded condonation as a defense to appellant's action. The issues presented by 2. appellee's motion should have been heard and determined when the cause was tried on the question presented by the complaint for divorce. Such trial could not be held until sixty days after the issuance of summons. Sec. 2-1905, Burns' 1946 Replacement (1951 Supp.).
Therefore the judgment of the Superior Court of Marion County, Room No. 2, is reversed, with instructions to set aside its judgment and for further proceedings in accord with the views expressed herein.
NOTE. — Reported in 100 N.E.2d 900.