Opinion
No. 19,188.
Filed September 20, 1960.
1. APPEAL — Appellee Fails To Make Appearance or Submit Brief — Prima Facie Error — Reversal. — Where appellee makes no appearance and fails to file brief, the court on appeal is required to observe only whether appellants have demonstrated prima facie error warranting a reversal of lower court's judgment. p. 37.
2. PROMISSORY NOTES — Consideration — Accommodation — Appeal. — Where notes were executed and delivered by appellants as an accommodation arrangement with appellees, predicated on the successful result of an effort to salvage the financial interests of both parties in a business venture which failed, then it was error for the trial court to enter judgment in excess of the proven obligation of $125.00 since there was a want of consideration for such notes and there is thus a showing of prima facie error warranting a reversal of lower court's judgment. p. 37.
From the Marion Superior Court, Room No. 3, Norman E. Brennan, Judge.
Lewis Worak and Ruth Worak, appellees, instituted separate actions seeking recovery on promissory notes executed by appellants, Paul F. Jock and Alice C. Jock. The actions were consolidated for trial and resulted in judgment for appellees. Appellants appeal.
Judgment vacated and set aside with instructions. By the Second Division.
James K. Northam, of Indianapolis, for appellant.
These actions were consolidated for trial in the trial court. Appellees instituted their respective actions against appellants, seeking recovery on promissory notes executed by appellants, together with attorney fees and costs. The appellants answered appellees' complaints under the rules and, affirmatively, that appellees were, respectively, the payees named in the notes and were not holders thereof in due course, and that there was a want or failure of consideration for said notes other than the sum of $125.00 due appellees for the purchase from them by appellants of certain corporate stock. The trial court found for appellees and entered judgment that they recover of appellants the sum of $11,875.00 and $1200.00 attorney fees, with costs.
Appellants assign as error that the decision of the court is contrary to law and is not sustained by sufficient evidence. Appellees have made no appearance herein nor have they 1. filed any brief in support of the finding and judgment appealed from. It follows that we are required to observe only whether appellants have demonstrated prima facie error warranting a reversal of said judgment. Abair v. Everly (1959), 130 Ind. App. 192, 163 N.E.2d 34, and cases cited.
The only evidence given at the trial consisted of a stipulation by the parties and oral testimony of appellant, Paul F. Jock. Appellants concede that they are obligated to appellees on 2. said notes in the amount of $125.00 but they contend that there was a pro tanto failure of all other consideration for said notes in that the same were executed and delivered by appellants as an accommodation arrangement with appellees, predicated on the successful result of an effort to "salvage" the financial interests of appellants and appellees in a dishwashing machine production project in which they had engaged and which had failed with consequent financial destitution of three corporations utilized in the project. The whole project failed. Appellants' brief clearly demonstrates that the decision appealed from is contrary to law.
As the only evidence given in the cause was by stipulation on behalf of appellees, and said stipulation and oral testimony of Paul F. Jock on the part of appellants, and there appears no material dispute therefrom, the record establishes that a new trial of this action is unnecessary. Therefore, the trial court is instructed to set aside and vacate its judgment herein appealed from and to enter judgment for appellees and against appellants in the consolidated action in the amount of $125.00 and costs, together with a reasonable fee for appellees' attorney.
Bierly, C.J., Gonas and Smith, JJ., concur.
NOTE. — Reported in 169 N.E.2d 128.