Opinion
No. 19,211.
Filed October 9, 1959.
APPEAL — Briefs — Effect of Appellee's Failure to File Brief — Reversal on Basis of Appellant Presenting Prima Facie Case. — Where no brief is filed by the appellee the judgment may be reversed if the appellant's brief presents a prima facie case of error. This rule is not for the benefit of the appellant but for the protection of the court, so that the court might be relieved of the burden of controverting the arguments and contentions advanced for a reversal of the trial court where such burden properly rests upon the appellee.
From the Posey Circuit Court, Francis E. Knowles, Judge.
Ray E. Sunn, appellant, was defendant in an action by the appellee, Luther Martin, to recover upon a promissory note in which judgment was rendered in favor of the appellee. The appellant appeals.
Reversed. By the First Division.
John D. Clouse, of Evansville, for appellant.
Victor Ahrens, of Evansville, for appellee.
This is an appeal from an action by the appellee as plaintiff against the appellant as defendant to recover upon a promissory note. Judgment was rendered in favor of the appellee and after the overruling of appellant's motion for a new trial this appeal followed.
No brief has been filed by the appellee in support of the trial court's judgment.
Where no brief is filed by the appellee the judgment may be reversed if the appellant's brief presents a prima facie case of error. As has been stated many times, this rule is not for the benefit of the appellant but for the protection of the court, so that the court might be relieved of the burden of controverting the arguments and contentions advanced for a reversal of the trial court where such burden properly rests upon the appellee. Newton d/b/a, etc. v. Hunt d/b/a, etc. (1957), 127 Ind. App. 456, 142 N.E.2d 643; Whitaker v. Whitaker (1958), 128 Ind. App. 247, 147 N.E.2d 596; I.L.E. Appeals, § 394.
The appellant's brief which is filed herein in support of its appeal from the judgment does in our opinion make a prima facie showing of reversible error.
The judgment is therefore reversed and the cause remanded with instructions to sustain the motion for a new trial.
Myers, P.J., Ax, Cooper, JJ., concurring.
NOTE. — Reported in 161 N.E.2d 487.