72 Ind. App. 381 | Ind. Ct. App. | 1919
—Application by appellant, under §135 of the Code of Civil Procedure (§405 Burns 1914, §396 B. S. 1881), to be relieved from a judgment taken against him by default. Appellee having filed counter-
Appellant’s petition and supporting affidavit show that an action had been commenced by appellee against appellant, and that after service of process, which was by copy left at the hotel where appellant at the time resided, judgment was rendered against appellant; that at the time process was served appellant occupied one of many rooms in a large hotel; that no copy of any summons was left in the room occupied by appellant, and that he did not receive said summons, and at no time prior to the default had he any knowledge of the action. Facts are also set forth showing that appellant has-a meritorious defense to the original action, and that the proceeding for relief was promptly instituted when knowledge of the default came to appellant.
To controvert the facts presented by appellant’s application, appellee filed a counter affidavit, and at the hearing also offered verbal testimony. The evidence thus submitted tended to show that at the time the summons was served appellant occupied a certain room in the hotel where he resided, and had occupied that particular room continuously for about three months, and continued to occupy such room for some days thereafter; that the deputy sheriff of the county where the action had been commenced had duly served the summons by leaving a copy thereof at said room; that some months prior to the commencement of the action appellant had consulted an attorney as to appellee’s claim for which the judgment now sought to be set aside was given; that said attorney, before the default was taken, had knowledge of the pendency of the action, and in a conversation