73 Ind. App. 578 | Ind. Ct. App. | 1920
Lead Opinion
Statement by
The action out of which this controversy arose was instituted by the appellee against the appellant to recover damages for personal injury due to negligence. A summons was served on the defendant commanding it to appear on February 27, 1918. On March 5, 1918, the defendant was defaulted. Thereupon the court heard evidence as to the amount of damages to be assessed, and rendered judgment for $5,000 and costs. On the next morning the defendant filed its verified motion to be relieved from the judg
The material facts stated in the motion and affidavit are as follows: “That the defendant had employed as its counsel for the purpose of defending against the action the firm of Embree & Embree; that said firm is composed of Lucius C. Embree and Morton C. Embree; that the management of the defense was entrusted particularly to the care of Lucius C. Embree; and that these lawyers reside in Gibson county. That on February 25, 1918, Lucius C. Embree was in the Pike Circuit Court and then in the presence of Frank Ely, a member of the bar,, informed the court that Embree & Embree represented the defendant and requested the court to note their appearance accordingly; that he also informed the court that the return day named in the summons was February 27, 1918, and requested the court to enter' a rule requiring his client to answer on March 6, 1918; that the court apparently assented to the request and immediately wrote something on the judge’s docket; that thereupon said Embree informed the court that his firm also represented the defendant in the cause of Williams v. Northern Coal Company et al., then pending in said court, and requested the court to extend the rule requiring answers to interrogatories in that cause to and including Wednesday, March 6, 1918, and to that request the court also apparently assented and immediately wrote something on the judge’s docket. That Embree did not examine the writing on the judge’s docket but departed from the court fully believing that the time for filing answer in the case at bar had been extended to and including March 6, 1918. Subsequently it developed that the court had designated on the docket March 4, 1918, as the limit of time within which to answer the complaint. That on March 4, 1918, Lucius C. Embree was in court and requested and obtained
Harry W. Carpenter, counsel for the plaintiff, filed his affidavit in which he sets forth his version of the matter, the material averments thereof being as follows: “That Lucius C. Embree was in the Pike Circuit Court on Feb. 25, 1918; that Embree then knew that said cause was pending in said court and knew that.the return day was only two days in the future; but that Embree then refused to appear for the defendant until the day stated in the summons should arrive. That it was on Feb. 27, 1918, the return day, when Embree requested the court to enter the appearance of his firm for the defendant; and that thereupon the court wrote on the docket the following words, viz.: ‘Embree & Embree appear, and ruled to answer by 25th day’; that by said rule the defendant was required to answer the complaint on March 4, 1918, that being the 25th day of said term; that Embree was in said court on March 4, 1918, and did not answer the complaint or give any reason for not doing so, but refused and failed to file an answer in said cause; that the plaintiff waited until March 5, 1918, for defendant to answer, and because of his failure'so to do, the defendant was then defaulted. That rule No. 14 of said court was then in force and in the following words:
‘All parties and attorneys, whether local or foreign, must take notice of all proceedings had in any case wherein they are interested, and be pre*582 pared to comply with any order or rule of the court. under these rules. To know the status of cases frequent examination of the court record and proceedings is advised. The clerk will not be required to give notice to any parties or attorneys of the condition of their cases or any ruling of the court touching the same.'
“That Embree knew on March 4, 1918, while then in said court, that said rule was pending against the defendant; and that the default was taken in compliance with Sec. 410 Burns Ann. St. 1914.”
The record discloses that the motion was set for trial on April 22, 1918, $t which time the matter was submitted for determination. The foregoing affidavits constituted the only evidence adduced. The motion was overruled and the court gave an exception to the appellant. An appeal was prayed, granted, and duly perfected as a term-time appeal. The following errors are assigned: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the Pike Circuit Court did not have jurisdiction of the subject of the action; (8) that the court erred in overruling the motion for relief from the judgment; and (4) that the court erred in overruling the motion for a new trial.
The appellee has moved to dismiss the appeal on the ground that the action of the court in overruling the motion for relief from the judgment rendered on default does nqt constitute a final judgment from which an appeal may be taken.
This proceeding comes within §405 Burns 1914, §396 R. S.1881. That section of the Code does not prescribe the details of the' procedure. The task of formulating specific rules of procedure under that section was left to the courts. Frazier v. Williams (1862), 18 Ind. 416. It must be confessed that in the procedure thus created there is much confusion. No
While the courts have held that the application, where made at the same term at which the judgment on default is rendered, should be in the form of a motion, nevertheless in the very nature of things it cannot be an interlocutory motion. Notwithstanding the incongruities of the procedure, the Supreme Court and this court for many years .have recognized such rulings as final judgments. The decision thus rendered is the sentence of the law pronounced upon the facts, and effectually puts an end to the entire controversy. It can be nothing less, therefore, than a final judgment. Moore v. Horner (1896), 146 Ind. 287, 45 N. E. 341; Frazier v. Williams, supra; Covey v. Neff (1878), 63 Ind. 391; Hill v. Shannon (1879), 68 Ind. 470; Beatty v. O’Connor (1886), 106 Ind. 81, 5 N. E. 880; Hord v. Bradbury (1901), 156 Ind. 30, 59 N. E. 31; State, ex
The motion to dismiss the appeal is overruled.
We will dispose of the assignments of error in their numerical order:
Where summons has been duly served and a judgment rendered against the defendant on default for failure to appear in response to the summons, can he get rid of the judgment by taking an appeal and showing the appellate tribunal that the complaint does not state facts sufficient to constitute a cause of action? See Security Trust Co. v. Myhan (1917), 186 Ind. 391, 114 N. E. 410; Ervin School Tp. v. Tapp (1890), 121 Ind. 463,
(4) No motion for a hew trial was filed, and we can discover no rational excuse for the fourth assignment of error.
Dissenting Opinion
Dissenting Opinion.
Having written the main opinion herein in such manner as to meet the approval of the majority of the court, I feel that in justice to myself I ought to state that it does not wholly and fully express my personal convictions.
My individual opinion is that no recognition whatever should be given the first and fourth assignments of error, for the reason that the appeal is not from the judgment rendered on default; that the second assignment of error is entitled to recognition only because it presents prima facie a jurisdictional question; that the third assignment of error presents the only legitimate question in this appeal; that the case of Indiana State Board, etc. v. Fetrow (1918), 119 N. E. 1004, should be overruled; and that so much of the opinion in Kurtz v. Phillips (1916), 63 Ind. App. 79, 113 N. E. 1016, as conflicts with the majority opinion herein should be expressly disapproved. It is clear to me that the so-called motion is in reality a complaint, and that the proceeding by reason of its inherent nature can be nothing other than an independent action whether commenced at or after the term at which the judgment, from which relief is sought, was rendered. Moreover, in my opinion the mandate to the trial court should be that a new trial be granted on the so-called motion in order that further evidence may be presented if desired by either party.