Filed January 16, 1925.
1. APPEAL. — Briefs. — Appellee's Failure to File Regarded as Confession of Error. — Where appellant's brief makes a prima facie showing of reversible error, appellee's failure to file brief may be taken as a confession of error, and the judgment reversed on such confession. p. 569.
2. DRAINS. — Petition. — Description of Lands Affected. — Effect of Insufficiency. — Statute. — That a drainage petition did not describe two-thirds of the aggregate length of the work which will be reported for construction or did not describe two-thirds in area of the lands that will be affected by the construction of the drain, as required by § 6142f Burns' Supp. 1921, Acts 1919 p. 492, § 2 1/2, was cause for setting aside the report of the drainage commissioners, on proper remonstrance, but not for dismissing the petition for lack of jurisdiction. p. 570.
From Blackford Circuit Court; Frank W. Gordon, Judge.
Petition by Marion Linder and others for the establishment of a drain. From a judgment ordering the drain established, the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company appeals. Reversed.
G.E. Ross, for appellant.
This is an appeal from a judgment establishing and ordering the construction of a public drain. On August 1, 1922, appellant filed its brief, setting out each of fourteen assignments 1. of errors, and stating forty-six "points" in support of its contention that the trial court committed a number of errors for which the judgment should be reversed. Counsel for appellees receipted for the transcript on August 29, 1922, and, after having been granted one extension of time in which to file a brief, asked and obtained a second extension to and including February 5, 1923. The record does not show that anything further has been done, and although more than two years have elapsed since the brief for appellees should have been filed, they have offered the court no assistance whatever in determining whether or not appellant's contention that the trial court erred is well founded. Where the brief on behalf of appellant makes a prima facie showing that reversible error was committed, this court may, in its discretion, treat the failure of appellees to file a brief, attempting to aid the court in learning whether or not reversible error in fact was committed, as a confession of errors, and may reverse the judgment as upon such a confession. Burroughs v. Burroughs (1913), 180 Ind. 380, 103 N.E. 1; Ewbank's Manual (2d ed.) §§ 190, 190a.
That the drainage petition did not describe two-thirds of the aggregate length of the work as reported for construction, or did not describe two-thirds in area of the lands that would be 2. affected by the construction of the drain as reported, in compliance with § 6142f Burns' Supp. 1921, § 2 1/2, Acts 1919 p. 492, is cause for setting aside the report of the drainage commissioners, on proper remonstrance, but is not an objection that can be presented by a motion to dismiss the petition for lack of jurisdiction. In re Gilbert (1924), ante 278, 144 N.E. 551.
The judgment is reversed, with directions to sustain appellant's motion for a new trial.