21 Ind. App. 595 | Ind. Ct. App. | 1899
This was an action brought by appellant, under section 899, Burns’ R. S. 1894, to set aside a judgment rendered against it by default. The motion and affidavit disclose the following facts, as relied upon by appellant to secure the setting aside of the judgment: That on the Yth day of January, 1898, the appellee recovered a judgment by default against appellant for $24-Y; that the default was taken by appellee on the 5th day of January, 1898; that appellant, by its agents and attorneys, was present affithe court-room and at the clerk’s office of the Lake Superior Court at Hammond, Indiana, on Monday, December 2Y, 189Y, at 9 o’clock a. m., ready for trial in said cause; that one Frank Hess was in charge of the clerk’s office and the papers in said office; and that said Hess informed the attorneys and agents of appellant that the clerk of said court was at Crown Point, Indiana, and that the court had adjourned, and would not meet again until the 3rd day of January, Í898, and that the clerk of said court would not be in Hammond until that time, and that appellant could not enter its appearance in,said cause for the reason that the court was not in session, and on account of the clerk’s absence; but that the cause was set for trial on Monday, January 1Y, 1898, and
There is no doubt but that appellant has set out in his affidavit a meritorious defense to appellee’s
The motion and affidavit of appellant was filed on the 12th day of January, 1898, five days before the time set, for the trial of the cause, as appeared from the trial calendar, which was posted in a public place in the court room where the cause was pending. The whole trouble in this case grows out of the fact that appellant never appeared to this action, and appellee properly asked and had a default entered against it. It was of no consequence to appellant when appellee should appear and produce the proof upon which the court could render judgment, because the allegations of appellee’s complaint were in no way denied or avoided by appellant. If the cause had been at issue and set for trial upon a certain day, we are inclined to think that appellant could have relied upon the statement of the man in charge of the books at the clerk’s office, and could have relied on the date set down in the trial calendar as being the date when the cause would be tried. Attorneys know that causes cannot be tried until an issue is made; and a statement made to appellant’s attorneys by the clerk of the court or his
The judgment is affirmed.