Cоmplaint by the appellees against the appellant, for the assignment of dower in certain real estаte. Judgment by default for the plaintiffs below.
At the next term of the Court after the judgment was entered, Carlisle appeared by his attorney, and moved to set aside the judgment. He filed an affidavit, setting out
The motion was overruled, and exception taken.
At the next term of the Court, and before the expiration of a year from the rendition оf the judgment, the motion was again made, and the affidavit of said Lucian Barbowr was filed,' in support of the motion, as well as said affidаvit of Carlisle. The affidavit of Barbour states, “ That, in the month of September or October, in the year 1854, Carlisle, the defendant, came to the law-office of the deponent and Albert G. Porter, with whom the deponent was then practicing law in partnership, and advised with them as his attorneys, relative to a suit then recently commenced against him in the Morgan Circuit Court by the plaintiffs, for a dower right in certain mill property situated in Waverly, in Morgan county. The deponent did not then know when the next term of the Court would be held in Morgan county, and so informed Mr. Carlisle; and as both the deponent and said Porter had ceased to practice law in said Morgan Circuit Court, they made no contract with said Carlisle to attend to the case at Martinsville; but they advised with him as to his defense to the action. The deponent further says, that said Carlisle left the office at that time, without anything being said about any employment of аny person to attend to the case in Morgan county; and as this deponent and said Porter were attending to said Carlisle’s law business generally in Marion county, the said Carlisle seems to have left the office with
The motion was agаin overruled, and exception taken; and the correctness of these rulings is the only question presented by the record.
At common law, a default could not be set aside at a term after the one at which judgment was renderеd. Blair v. Russell, 1 Ind. R. 516.— Gullett v. Housh,
The statute relied upon, authorizing such proceeding, is as follows:
* * * “ The Court may also, in its discretion, allow a pаrty to file his pleadings' after the time limited therefor; and at any time within one year relieve a party from a judgment tаken against him through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any of the рroceedings.” 2 R. S. p. 48, § 99.
By the above provision, it will be seen that it was in the “discretion” of the Court below to relieve thе party from the judgment, and permit him to plead, or to refuse the application. Where a discretionary рower 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. Morris v. Graves, 2 Ind. R. 354.—Detro v. The State, 4 id. 200.—Heberd v. Myers, 5 id. 94.
The application, made at the first term of the Court after the default, was based solеly upon the affidavit of Carlisle. That affidavit, so far as the point now under
But at the next term of the Courtj the affidavit of Mr. Barbour, the attorney allegеd to have been employed, was filed, and the' motion to set aside the default renewed. The affidavit of Mr. Barbour puts an entirely different phase upon the matter. Mr. Barbour did not understand that he was employed at all in the cause, and of course could have been guilty of no negligencе in not attending to it. The affidavits, taken together, show about this state of facts:—Carlisle, supposing he had employed Barbour to defend the suit, gave himself no more trouble about it; while Barbour not being employed, or not understanding himself to be employed, of course paid no attention to it whatever, and in the meantime default was entered.
It is insisted that the application to set aside the default having bеen once made and overruled, could not be repeated; that such an application is similar to аpplications for a change of venue. Millison v. Holmes, 1 Ind. R. 45.
It is unnecessary to decide, in the present case, whether the above proposition is, in all respects, correct, as we think the affidavit of Barbour came too late. There is no reason shown why it could not have been procured and filed at the time Carlisle’s was filed. Ordinary diligence, we think, requirеd this to be done. One vacation intervened between the default, and the first application to set it aside, during which, for aught that appears, Mr. Barbour’s affidavit might have been taken, and filed in support of the motion. This, however, was hot dоne, but the appellant chose to rest the motion on his own affidavit. Having failed in this, he procured the affidavit of Barbour, and
' Whether or not, had both affidavits been filed on the first application, it would have beеn error to overrule it; or whether an application can, in any case, be renewed upon an additional showing, having been once made and overruled, are questions which we do not decide.
The judgment is affirmed with costs.