Haas v. Schrum
124 N.E. 761
Ind. Ct. App.
1919
Check Treatment
Bemy, J.

—Application by appellant, under §135 of the Code of Civil Procedure (§405 Burns 1914, §396 B. S. 1881), to bе relieved from a judgment taken against him by default. Appellee having filed cоunter-*383affidavits, a hearing was had, resulting in a denial of the petition. This ‍​‌‌​‌‌‌‌​​​​‌​​‌​​​​​​​​‌​​​​​‌‌​​‌‌​‌‌​​‌​‌‌‌​‌‍action of the trial court is the only error relied upon for reversal.

Appellant’s рetition and supporting affidavit show that an action had been commenсed by appellee against appellant, and that after servicе of process, which was by copy left at the hotel where appеllant 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. Fаcts 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.

Tо 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 commencеment 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 *384with appellee’s attorney had stated that he had asked appellant “if he had been sued,” but “without mentioning the specific case.” Evidence was also heard by the сourt which tended to refute appellant’s defense as set forth in his petitiоn.

1. One who would set aside a default in an action of this character must show (1) that he has a meritorious defense, and ‍​‌‌​‌‌‌‌​​​​‌​​‌​​​​​​​​‌​​​​​‌‌​​‌‌​‌‌​​‌​‌‌‌​‌‍(2) that the judgment was taken against him through.his mistake, inadvertence, surprise, or excusable neglect. Davis v. Steuben School Tp. (1898), 19 Ind. App. 694, 50 N. E. 1. If the applicаtion shows that the petitioner has a meritorious defense, neither countеr affidavits nor other evidence are admissible to contradict such showing. Nord v. Marty (1877), 56 Ind. 531; Covault v. Sanders (1904), 34 Ind. App. 14, 72 N. E. 163. It - follows that the evidence tending to refute appellant’s defense ‍​‌‌​‌‌‌‌​​​​‌​​‌​​​​​​​​‌​​​​​‌‌​​‌‌​‌‌​​‌​‌‌‌​‌‍was imрroperly admitted, and cannot be considered for any purpose.

2. Whеn the facts stated in the application for relief show that the defaulted party has a meritorious defense, and that the default was taken through .the mistake, inadvertence, surprise or excusable neglect of such party, thе trial court has no discretion, but must grant the relief. Bush v. Bush (1874), 46 Ind. 70; Nietert v. Trentman (1886), 104 Ind. 390, 4 N. E. 306.

3-4. The evidence in the instant case shows that appellant had no knowledge whatever of the actiоn filed against him until after the default had been taken. The knowledge of the attоrney ‍​‌‌​‌‌‌‌​​​​‌​​‌​​​​​​​​‌​​​​​‌‌​​‌‌​‌‌​​‌​‌‌‌​‌‍was not, under the circumstances shown by the evidence, notice to аppellant. It is not shown that the attorney spoke to appellant about the action which had been begun by appellee.

*385The trial court еrred in overruling appellant’s application. Judgment reversed, with instructions to set aside the default, that appellee he permitted to answer the complaint in the original action, and for further proceedings therein.