
    Goldberg v. Hauer.
    [No. 11,610.
    Filed January 18, 1924.]
    Appeal.— Briefs.— Appellee’s Failure to File.— Equivalent to Confession of Error. — The failure of appellee to file a brief will be taken as a confession of error where appellant’s brief makes a prima facie showing of error.
    From Hamilton Circuit Court; Fred E. Hines, Judge.
    Action by Kenneth Hauer, doing business under the style and name of “The Howard System,” against Irving I. Goldberg, doing business under the firm name and style of “The Indianapolis Auto Parts and Tire Company.” From a judgment for plaintiff, the defendant appeals.
    
      Reversed.
    
    
      L. Roy Zapf and Christian & Waltz, for appellant.
   Batman, J.

This is an action by appellee against appellant, based on an alleged breach of a written contract, in which á judgment was rendered against the latter for the sum of $800. Appellant filed a motion for a new trial, alleging among' the reasons therefor, that the assessment of the amount of recovery is erroneous, being too large. The action of the court in overruling this motion is assigned as error on appeal. We have carefully considered appellant’s brief, and have reached the conclusion that it discloses prima facie, that the court erred in overruling said motion for the reason stated above. Appellee has not filed a brief in ' support of the judgment, and, therefore, under the circumstances stated,- such failure will be taken as a confession of error, justifying a reversal, without considering other reasons on which such motion is based. Union Traction Co. v. Wolf (1920), 78 Ind. App. 392, 127 N. E. 564; Glencoe Cotton Mills v. Capitol Paper Co. (1920), 74 Ind. App. 289, 128 N. E. 699; Roberts v. Fesler (1920), 74 Ind. App. 333, 128 N. E. 359; Robertson v. Ewing (1922), 78 Ind. App. 307, 135 N. E. 491. Judgment reversed, with instructions to sustain appellant’s motion for a new trial.

Nichols, J., not participating.  