29 Ind. 318 | Ind. | 1868
Stewart, the appellee, contracted with the city of Indianapolis to grade and gravel Mississippi street, between North street and the donation line, the cost thereof to he paid by the owners of lots fronting on that part of
In support of the motion to set aside the default, the appellant filed her own affidavit, and also several affidavits of J. W. Blake, one of her attorneys. In the affidavit of the appellant no excuse whatever is given, or attempted, for the default or failure to plead within the time required by order of the court. She states, however, that the assessment was greatly above the actual value of the work done, and that it included a side-walk for two squares made by her
Blake, the attorney, states in one of his affidavits “ that it was his impression, from Black and Brown, the attorneys for plaintiff, and from the plaintiff himself, that the default should be set aside, and that an answer could be filed and the case brought to issue; ” that he had the papers in his office preparing an answer, and some one took them all, except a demurrer and motion to strike out eight pages of the complaint; that he believed he would have until Wednesday — moúow day — to file his motions in the case; that on the 26th of October he made a motion to set aside the default, which, he understood, was granted, and relying thereon, he delayed the filing of an answer until motion day, “and was much surprised to find that on Tuesday evening, October 29th, 1867, six days after the default was taken, after dark, at an unusual hour, a trial was had,” without notice to him or his associate counsel. In another affidavit, Blake, the attorney for the appellant, swears that he received the papers in the case from his associate counsel, Mr. Sheeks, with a motion to strike out eight pages of the complaint, and that it was agreed between him and Mr. Sheeks that the motion should be filed on Saturday, the 26th of October, but when he came to file the motion he was informed that there had been a default taken a day or two previous ; that he at once prepared an affidavit to set the default aside and swore to it, which set forth the reasons for setting aside the default, but that it had become lost from the papers, and was not then on file. The affidavit here referred to as being lost was. subsequently cojfied into the bill of exceptions. It asks the court to set aside the default and allow a motion to be made to strike out “ certain portions of the complaint.” The reasons for the motion are stated to be that Mr. Sheeks, the associate counsel of the affiant, had the papers in the case in his hands, and only informed the
It is provided by section 99 of the code (2 GL & H. 118), that the court may, “ in its discretion, allow a party to file his pleadings after the time limited therefor; and at any time within one year relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any proceedings.” By this provision, it was in the “discretion” of the court below to allow the appellant to file her pleadings after the time limited therefor, and to relieve her from the judgment and permit her to plead, or to refuse the application. And it has been too often held by this court to need a reference to the cases, that “ where a discretionary power is vested in an inferior court, there must be a plain case of the abuse of that discretion in order to justify the interference of this court. Where, in such case, the default is attributable to the negligence of the party, it should not be set aside, even by the lower court, unless it be shown that such negligence was excusable.
A default and judgment against a defendant regularly served with process, or who has voluntarily appeared to the action, should not be set aside on motion unless it be made to appear that the defendant has a meritorious defense to the action, or to some part of it, and that the default was the result of mistake, inadvertence, surprise, or excusable neglect.
The statement in the affidavit of the appellant that the assessment was greatly above the actual value of the work done, does not show a valid ground of defense, as the record shows the work was contracted at a given price per cubic yard. It may be conceded that the fact stated in
The judgment is affirmed, with costs.