Feldman v. Elmore

163 N.E. 846, 88 Ind. App. 355, 1928 Ind. App. LEXIS 142

Opinion

Neal, J.

This is an action to recover damages on account of breach of warranty of title in the sale of an automobile. The St. Joseph Circuit Court, from which this cause is appealed, found the facts specially, stated conclusions of law thereon and rendered judgment in favor of appellee in the sum of $643, and costs. Appellant perfected a term-time appeal. Errors assigned for reversal: The trial court erred in each of its conclusions of law, and in overruling appellant’s motion for new trial. No brief of appellee has ever been filed, and no excuse has ever been given for his failure to do so.

It has been repeatedly held by the Supreme and Appellate Courts that where appellant by his brief shows ;prima facie error, the failure of appellee to file brief in support of the judgment of the trial court, may be taken or deemed to be a confession of error. Miller v. Julian (1904), 163 Ind. 582, 72 N. E. 588; Burroughs v. Burroughs (1913), 180 Ind. 380, 103 N. E. 1; Eigelsbach v. Kanne (1915), 184 Ind. 62, 110 N. E. 549; Veit v. Wind horst (1915), 184 Ind. 351, 110 N. E. 666; Wasman v. Dye (1920), 73 Ind. App. 11, 126 N. E. 455; Goldberg v. Hauer (1924), 81 Ind. App. 23, 142 N. E. 125.

Appellants brief discloses prima facie reversible error. Judgment of the trial court reversed, with instructions to sustain appellant’s motion for a new trial.