75 N.E.2d 172 | Ind. Ct. App. | 1947
The appellee was granted a divorce from the appellant by the Dearborn Circuit Court but, for reasons which we can only surmise, he has not favored us with a brief in support of the judgment he obtained below.
As late as June 19, 1947, the Supreme Court in Meadows v.Hickman (1947),
The application of this rule, however, has been restricted to those appeals in which the appellant's brief makes an apparent or prima facie showing of reversible error. Meadow v. 2. Hickman, supra; Pittsburgh, etc. R. Co. v. Linder
(1925),
We adopt and apply the rule without hesitancy in the present case because it involves the dissolution of a marriage through an unjustifiable liberality in the determination of what facts constitute "cruel and inhuman treatment" within the meaning of our statutes concerning divorce. This statement is prompted entirely by the showing made in the appellant's brief and if we are wrong in so concluding it is because we do not conceive it to be our duty to perform a service for the appellee which properly rests upon his counsel. Roth v. Vandalia R. Co. (1918),
The error relied upon by the appellant is the overruling of her motion for a new trial, which motion counts upon the insufficiency of the evidence to support *603 the decision. The sole ground for divorce alleged in appellee's complaint is cruel and inhuman treatment. The narrative statement of the evidence, as set out in the appellant's brief and viewed with all the liberality justified through sympathy for young people joined in incompatible marriage, contains no evidence whatever of cruel and inhuman treatment. There is a prima facie showing of reversible error and the judgment herein is therefore reversed without prejudice to either party and the cause is ordered remanded to the Dearborn Circuit Court with instructions to grant the appellant's motion for a new trial.
NOTE. — Reported in