Moore v. Zumbrun

Dowling, J. This is an action hy the appellee against the appellants for damages alleged to have been sustained by the appellee by reason of the negligence and unskilfulness of the appellants, who were physicians and surgeons, in their treatment of the appellee during an attack of illness. Issues were formed and a trial by a jury resulted in a verdict in favor of the appellee for $1,500. A motion for a new trial was overruled, and judgment was rendered upon the verdict. Moore alone appeals, notice having been served upon his co-defendant. Errors are assigned upon the ruling of the court on demurrers to the several paragraphs of the complaint and on the motion for a new trial. The record was filed in the Appellate Court April 2, 1903, and notices of the appeal were issued on the same day and were served on the appellee. The cause was fully briefed hy counsel for the appellants and their briefs were filed with the clerk of this court June 19, 1903. Ten months have elapsed since the filing of the briefs for the appellants, but no steps of any kind have been taken in the case by the appellee. No brief has been filed in his behalf and no excuse for not filing it has been shown. Under these circumstances the silence and neglect of the appellee to take any steps in the cause, or to controvert any of the errors assigned, may be taken as a confession that they exist, and that the judgment should be reversed. The rule in such cases has been plainly stated in several decisions that the judgment may, in the discretion of the court, be reversed. Berkshire v. Caley, 157 Ind. 1; Neu v. Tom of Bourbon, 157 Ind. 476; People’s Nat. Bank v. State, ex rel., 159 Ind. 353. Judgment reversed, with directions to the court to sustain the motion of the appellant Moore for a new trial.