Opinion
No. 19,959.
Filed December 5, 1963.
1. APPEAL — Failure to File Appellee's Brief — Prima Facie Error — Reversal. — Where appellee has not appeared or filed any brief and appellant has prima facie established the error assigned, judgment may be reversed. p. 454.
2. BILLS AND NOTES — Adequate Consideration — Admitting Note — New Trial — Appeal. — Where sole ground of non-liability relied upon by appellee in trial court was want of consideration, holder of promissory note for which a good, sufficient and adequate consideration was proven by undisputed evidence and which note had been admitted by appellee, is entitled to a new trial. p. 454.
From the Marion Superior Court, Room No. 2, Mercer M. Mance, Judge.
Appellant, Roy McClurg, as alleged holder in due course of promissory note instituted action on such note against appellee, Harold E. Barnes. Trial court found against appellant and he appeals.
Reversed. By the Second Division.
Zane E. Stohler, Mendenhall, Hunter Stohler, of Winchester, and Owen S. Kern, of Indianapolis, for appellant.
Joseph P. Sullivan, of Indianapolis, for appellee.
The appellant duly instituted this action against appellee by complaint alleging upon a certain promissory note. The appellee, by appropriate pleading, admitted the note as declared upon in the first rhetorical paragraph of the complaint; and, by affirmative answer, alleged that the note "was given without any consideration whatever," and that appellant was not a holder in due course of said note.
The issues, duly made, were submitted for trial to the court, without a jury. The court found against the plaintiff on his complaint and taxed the costs against him. Consistent judgment followed. Appellant's motion for a new trial, on the grounds that the decision is not sustained by sufficient evidence and that the same is contrary to law, was overruled and such action by the court is the sole error assigned on this appeal.
The appellee has not appeared or filed any brief herein. Therefore, if appellant has prima facie established the error assigned, the judgment may be reversed. Brown, 1. Admr., etc. v. Montgomery (1955), 125 Ind. App. 395, 397, pt. 1, 125 N.E.2d 37.
The sole ground of non-liability relied upon by appellee in the trial court was that there was no consideration for the note sued upon. Appellant's brief, however, quite definitely 2. demonstrates that a good, sufficient and adequate consideration for the note was proved by the undisputed evidence.
The judgment is reversed and the cause remanded to the trial court, with instructions to sustain appellant's motion for a new trial, and for further proceedings.
Hunter, P.J., and Mote and Pfaff, JJ., concur.
NOTE. — Reported in 194 N.E.2d 421.