2 Ind. App. 55 | Ind. Ct. App. | 1891
On the 24th day of December, 1889, appellee commenced his action against the appellant in the Noble Circuit Court to recover damages for two horses killed, and a wagon and other personal property destroyed, at a highway crossing on appellant’s road, which highway crossing the complaint alleged, through the negligence of the appellant, was not kept and maintained in good and proper
On the same day the complaint was filed a summons was issued to the sheriff of Noble county, who made return thereof that he served the same on December 27th, 1889, “ upon the within named defendant by reading the same to and within the hearing of Albert S. Young, as local freight and passenger agent of the within named defendant (the Baltimore and Ohio and Chicago Railroad Company), at Albion Station, in Noble county, Indiana, and by delivering to him a full, true and complete copy of this writ. I can find no other officer of said railroad company of any higher grade in my county.”
The appellant failed to appear, by reason of which nonappearance it was defaulted on. the second judicial day of said term of said court, being the day of said term to which the summons was made returnable; and afterwards, on the 13th day of January, 1890, being the seventh judicial day of said term of said court, the cause was tried by the court, in the absence and without the knowledge of the appellant or any person representing the appellant, and judgment was rendered against the appellant for $275 and costs. Afterwards, at the same term of said court, appellant filed a motion to vacate the judgment for the reason that the summons was served on the appellant on the date hereinbefore named, and it was defaulted on the 7th day of January, 1890, and that the appellant was a corporation of Ohio and not of Indiana. This motion was supported by affidavit, and afterwards, and at the same term, another .motion was • filed to vacate the judgment, which was also supported by the affidavit of J. H. Collins, counsel for the appellant, in which it was stated that during the latter part of December, 1889, the summons in said cause was forwarded to his office; that when the summons was received it was laid aside by him, expecting subsequently to take up the question and file an answer; that he did not know, and the fact did not come to his knowledge until about the 20th, day of January, 1890; that the circuit court of Noble county commenced on the 6th day of January of said year, but the impression was left on his mind that said court commenced after the adjournment of the circuit court of De Kalb county; that he was counsel for appellant in the counties through which its road passed in the State of Ohio; that on the 6th day of January, 1890, an important case was set for trial in the common pleas court of Hancock county, Ohio, and that for one or two
The answer referred to in this affidavit was filed' with the affidavit and motion in said court. Both of these motions were overruled and exceptions taken.
The errors assigned are that the court erred in overruling appellant’s motion to set aside the default taken, filed in court on the 24th day of January, 1890; that the court erred in overruling appellant’s motion to vacate the judgment and set aside the default therein and allow appellant to file answer and go to trial; and that the court erred in
It is first contended by the appellant that the action did not properly stand for issue and trial at the January term, 1890, of said court; that service of process was not in time for that term, and that it was error to default the appellant on the second judicial day of the term, and then proceed to trial on the date named.
The appellant is mistaken in the position assumed. The summons was served on the 27th day of December, and was returnable on the 7th day of the January following, that being the second judicial day of the January term of said court, the term of the court commencing on the 6th day of January. This was ten days before the first day of the term, and was sufficient service under the rule that has been settled for many years in this State; that rule being “ that the day of service is excluded and the first day of the term included.” And it makes no difference where process was served ten days before the first day of the term and was made returnable on the second day, and default was taken on that day. Blair v. Manson, 9 Ind. 357; Womack v. McAhren, 9 Ind. 6; Blair v. Davis, 9 Ind. 236; Monroe v. Paddock, 75 Ind. 422; Kaufman v. Sampson, 9 Ind. 520; Kaufman v. Forchheimer, 10 Ind. 418; Trittipo v. Talbott, 13 Ind. 544.
We do not think the objection of the appellant’s counsel to the return of the service of the summons is well taken. The return to the summons, as shown by the sheriff in his endorsement thereon, complies strictly with the requirements of the statute and was clearly sufficient. Section 316, R. S. 1881; Toledo, etc., R. W. Co. v. Owen, 43 Ind. 405.
The remaining claim of the appellant is that the circuit court should have relieved the appellant from the judgment under the last clause of section 396, R. S. 1881, providing that the court “ shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusa-.
It appears from the record in this case that on the 7th day of January, 1890, being the second judicial day of said term of said court, the default was entered against the appellant, and that on the seventh day of the term the case was tried by the court on the default, and judgment was rendered against the appellant; that afterwards, on the 24th day of January, 1890, being the seventeenth judicial day of said term, said appellant filed a motion to set aside the default, and vacate said judgment, which motion was supported by the affidavit of John E. Rose, an attorney for the appellant, which motion was, on the 29th day of January, 1890, being the twenty-fourth judicial day of said term of said court, overruled; and thereupon appellant filed a second motion to vacate said judgment and set aside the default, which was supported by the affidavit of J. H. Collins, also an attorney of the appellant, which motion was also overruled. There was nothing in the first motion that presented any cause that would have justified the court in vacating the judgment and setting aside the default, and there is no claim in the argument that this motion was improperly overruled; but it is presented in argument in connection with the second motion, which it is insisted should have been sustained.
If the appellant should have been relieved from the judgment by reason “ of mistake, inadvertence, surprise or excusable neglect,” such relief must have been granted under the statement of facts contained in the affidavit of appellant’s attorney, J. H. Collins. In the determination of this question it becomes necessary to look to the alleged grounds as shown by this affidavit. It will be seen that the deponent states “ that during the latter part of the month of Decern
With the statement of the deponent that he received the summons in the case at bar several days before the case was set for trial; that it was laid aside to be taken up subsequently, when an answer would be filed ; that he did not know, and the fact did not come to his knowledge until about the 20th of January, 1890, that the Noble Circuit Court commenced on the 6th of January of said year; that he had an impression on his mind that the Noble Circuit Court commenced after the adjournment of the circuit court in DeKalb county, and that on the 20th of January, 1890, the deponent found that he had entirely forgotten and overlooked this case, and then prepared the answer, we are asked to say that the circuit court erred in declining to relieve appellant from the judgment. The fact that the deponent received
To hold otherwise, where summons has been served as required by statute, and a copy thereof placed in the hands of the party charged with answering the cause, and in ample time for answer, would be holding that the summons could be evaded, and the judgment vacated under any pretence, however shallow.
It is apparent, from the record, that the deponent Collins was the general attorney of the appellant, and as such had general control and management of the appellant’s legal business, and was intrusted with the management of this case, and that it was his duty to take notice of, and give proper attention to, all actions commenced against the appellant ; and for that purpose the summons, as shown by deponent’s affidavit, was placed in his possession in ample time to have prevented a default, and made defence to the action.
Freeman, on Judgments, at section 112, says: “The neglect of an attorney or agent is uniformly treated as the neglect of the client or principal, except in New York. A default will not be opened because the attorney had prepared a demurrer, but had failed to file it by reason of his miscalculating
The facts shown by the record were clearly insufficient, on the ground of “ mistake, inadvertence, surprise, or excusable neglect,” to vacate the judgment, and set aside the default. Among the many cases decided by the Supreme Court sustaining this conclusion we cite the following. Sharp v. Moffitt, 94 Ind. 240; Kreite v. Kreite, 93 Ind. 583; Spaulding v. Thompson, 12 Ind. 477; Phelps v. Osgood, supra; Cox v. Harvey, 53 Ind. 174; Brumbaugh v. Stockman, 83 Ind. 583.
The appellee contends that there was not a sufficient showing that appellant had a good defence to the action. We think the statement by the deponent, that the answer in general denial, filed with the motion to vacate the judgment and set aside the default, as deponent believed, upon information which he had received from the proper officers of said company, might well have been considered by the circuit court as unsatisfactory, and that the court might well have inquired why the names of the officers of the company from whom the information was derived were not given, and their affidavits produced, instead of asking the court to accept the conclusion of the attorney.
The facts with reference to the defence were what should have been shown to the court. Phelps v. Osgood, supra; Goldsberry v. Carter, 28 Ind. 59; Frost v. Dodge, 15 Ind. 139.
We think the circuit court committed no error in refusing to vacate the judgment and set aside the default.
Judgment affirmed, with ten per cent, damages and costs»