1. APPEAL — Briefs — Necessity of Appellee to File — Failure to File — Reversal. — Where appellant's brief made a prima facie showing of reversible error and appellee failed to file a brief, such failure may be taken as a confession of reversible error; and the judgment may accordingly be reversed and the cause remanded without prejudice to either party. p. 21.
2. APPEAL — Briefs — Necessity of Appellee to File — Failure to File — Reversal — Discretion of Court. — The rule that appellee's failure to file a brief admits reversible error is not to be invoked for the benefit of the appellant but for the protection of the court, and whether it is invoked is discretionary with the court. p. 21.
BOWEN, J.
This is an appeal from a judgment for defendants on a promissory note. Appellees have not filed a brief in support of the judgment of the trial court.
Our courts have adopted a rule that the failure of an appellee to file a brief controverting the errors complained of in cases where the appellant's brief makes a prima facie showing 1, 2. of reversible error, may be taken as a confession of such errors. In such cases the judgment may accordingly be reversed, and the cause remanded without prejudice to either party. This rule is not to be invoked for the benefit of the appellant but for the protection of the court, and whether it is invoked is discretionary with the court. Miller v. Julian (1904), 163 Ind. 582, 72 N.E. 588; Meadows v. Hickman (1947), 225 Ind. 146, 73 N.E.2d 343; Huffman v. Huffman (1947), 117 Ind. App. 601, 75 N.E.2d 172; Whallon v. Wood (1948), 118 Ind. App. 163, 77 N.E.2d 913; Pittsburgh, etc., R. Co. v. Linder (1925), 195 Ind. 569, 145 N.E. 885; Bryant v. School Town of Oakland City (1930), 202 Ind. 254, 171 N.E. 378; Reed, Admr., v. Brown (1939), 215 Ind. 417, 19 N.E.2d 1015.
The appellant herein in support of its appeal from the judgment has filed a brief which, in our opinion, makes a prima facie showing of reversible error.
The judgment is reversed and the cause is remanded with instructions to sustain appellant's motion for a new trial.
Wiltrout, J., not participating.
NOTE. — Reported in 83 N.E.2d 622.