66 Ind. App. 453 | Ind. Ct. App. | 1918
— This was an application filed under §405 Burns 1914, §396 B. S. 1881, to set aside a default judgment rendered at the same term of court. The motion was denied.
The motion and affidavits in support thereof are lengthy and it would serve no useful purpose to set them out in full. It appears therefrom, in substance, that appellee brought an action against appellant before a justice of the peace for the value of services which appellee alleges appellant assumed and agreed to pay. From a judgment there rendered in favor of appellant an appeal was taken to the Superior Court, and the case was set for trial as the third case for Monday, October 11, 1915. One of the attorneys for appellant was present in court at the opening on the morning of the 11th, and through inquiry of attorneys interested learned that one of the cases would be dismissed, and that the trial of the second, a criminal case, would take all day and probably a part of the following day. Appellant’s attorney also consulted appellee, who was one of the attorneys in the criminal case, and was informed by him that that case would take alb day and that it would- place him (appellee) in a bad fix as his attorney in this case, John W. Kitch, wanted’to leave town the following morning. Appellant’s attorney thereupon consulted Mr. Kitch, who also informed him that the criminal case would probably take all day and that he (Kitch) had made arrangements to leave the city the following morning, in which event he would not be able to try this case. Both -appellee and his attorney were informed that appellant would accommodate them
Appellee filed his counter affidavit, which in so far as material here reads: “Affiant further says that he had no conversation whatever on October 11th, 1915, with Mr. Crane with reference to how long the Hackney case then on trial would take * * * ; that he had no agreement of any kind with said Crane to continue the same, but that he has been ready at all times to try said cause and was ready when said cause was called for trial.”
In view of the affidavit made by Mr. Kitch and the undisputed fact that he was appellee’s attorney in this case when he talked with appellant’s attorney about the ease, the matters denied by appellee were not material and do not raise any real conflict in the evidence.
The question then is, Was the showing here made sufficient to entitle appellant to the benefit of the statute? Decker v. Graves (1893), 10 Ind. App. 25, 37 N. E. 550; Ziegler v. Funkhouser, supra.
Judgment reversed.
Note. — Reported in 118 N. E. 370’. See under (3, 4) 23 Cyc 912, 942, 962. Statutes authorizing vacation and setting aside of default judgments, 58 Am. Dec. 392.