McClurg v. Barnes

Kelley, J.

— 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, 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 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.