Appellee brought this action against appellant to recover an amount alleged to be due and unpaid for feed furnished by appellee to the appellant. No question is raised as to the pleadings. After the issues were closed the cause was submitted to the court for trial which resulted in a finding and judgment for appellee in the sum of $300.00. In due course appellant filed its motion for a new trial asserting as causes therefor that the decision of the court is not sustained by sufficient evidence, and that the decision of the court is contrary to law. This motion was overruled, appellant excepted and thereafter perfected this appeal, assigning as error the overruling of said motion.
The evidence as set forth in appellant's condensed recital of the evidence in its brief shows that the feed, for the value of which appellee recovered in the trial court, was used in the feeding of certain horses owned by one Wilder who was a tenant of appellee, operating a farm owned by appellee, and that said horses were used by the tenant under the contract between him and appellee that he was to furnish the machinery and power necessary to farm the premises; that appellant held a chattel mortgage on said horses which became subject to foreclosure during the time that Wilder occupied appellee's farm as tenant; that the horses remained in the possession of the mortgagor, Wilder, and on the farm of appellee until this mortgage was foreclosed and possession of said horses taken by the sheriff after the rendition of the judgment of foreclosure. *Page 437
We find no evidence in the condensed recital thereof tending to prove that appellant at any time ever obligated itself to pay for the feed used in taking care of said horses, nor do we 1, 2. find any statement therein of any facts from which a reasonable inference of any such obligation could be drawn.
Appellee has failed to file any brief in support of the judgment. Such failure on his part, under prior decisions of our Supreme Court and this court, may be taken as a confession of error provided appellant's brief makes a prima facie showing of reversible error. Bryant v. School Town of Oakland City (1930), 202 Ind. 254, 171 N.E. 378; Hueseman v. Neaman (1937), ante 238, 6 N.E.2d 723.
After an examination of the record as it is presented on appeal we conclude that appellant has made at least a prima facie showing of reversible error in that under the issues formed and submitted for trial the evidence is not sufficient to sustain the decision of the court, and because thereof, the decision is also contrary to law.
Judgment reversed with instructions to sustain appellant's motion for a new trial.
Wood, J. not participating.