6 Ind. App. 1 | Ind. Ct. App. | 1892
The appellee, Alvina C. Peterson, sued the appellants, John Heaton and Charles Peterson, in the Circuit Court upon an injunction bond, executed by Peterson as principal and Heaton as surety. It is shown by the averments in the complaint that in 1890 Peterson brought an action against the appellee to recover the possession of certain personal property, and, upon executing the bond now sued on, obtained a restraining order preventing the
It is shown by the record that both of the appellants were served with summons, by reading: Peterson, by the sheriff of Marion county, on the 8th day of January, 1891, and Ileaton by the sheriff* of Boone county, on the 7th day of the same month. The process, in each instance, required an appearance in the Circuit Court to answer the complaint of the appellee, on the 20th day of said month, which was the 14th day of the term. Afterwards, on the 16th day of the term, the appellants, on the motion of the appellee, rvere ruled to answer. On the 28th day of January, 1891, which was the 21st day of the term, the appellants having failed to comply rvith the rule to answer, were called and defaulted. On the motion of the appellee, the cause was submitted to the court for trial and judgment, without the intervention of a jury. The court, after hearing the evidence, found for the appellee and assessed her damages at the sum of $75. Judgment was given the appellee for that amount. Afterwards, at the same term, Ileaton, the surety, filed his verified motion, supported by affidavit, to set aside the default and vacate the judgment. The motion was overruled by the court, and this is assigned as error.
That judgment was taken against him (Peterson) by default for $75; that as against Heaton the court did not have jurisdiction to render the judgment, inasmuch as there was no proof of any service of the summons or process on him in the files of the court, or in or as a part of the record in this cause, except such proof as the following words and figures afford:
“Came to hand January 7th, 1891; served, as commanded, by reading to and within the hearing of the within named defendant, John Heaton, January 8th, 1891,” which words and figures, although on the back of a summons issued by the clerk of said court to the sheriff thereof, commanding him to summon him, the said Heaton, to appear in said court on the 20th day of January, 1891, to answer the complaint of Alvina C. Peterson against said Heaton and Charles Peterson, were not such words and figures as could constitute a return of said summons by said sheriff that would give said court jurisdiction of him, and the judgment thereon rendered against him was void, at least until said words and figures had been or were so amended or corrected by said sheriff as to show and afford proof that it was into his hand, or that of some deputy of his, that said writ had come, and by him, or some deputy of his, been served, and no such correction or amendment was or ever has been made; that said default and judgment were taken against -him through his surprise and excusable neglect, in this : that, on the 20th day of January, he was informed by his co-defendant, Peterson, that he had employed Edwin S. C. Rogers, the same attorney who had appeared for Peterson in the replevin action to defend this cause for both of them, and that, as he is informed and believes, said Rogers was unable to attend to legal business by reason of sickness, which confined him at home from the 20th to the 28th
In support of the motion, the affidavit of the attorney, Rogers, was filed. It is as follows in substance: that he is the attorney mentioned in the motion to set aside the default, and resides in Indianapolis; that the statements contained in said motion touching his employment as attorney, and sickness, are true; that his sickness during the time mentioned was the cause of any failure or neglect on his part to give attention to said cause; that he was disabled by said sickness and in good faith rested in
A counter affidavit was filed by the appellee, in -which she states, among other things, that on the 7th of January, 1891, she filed in the office of the clerk of Boone county her complaint in this cause, and directed that a summons be issued for Charles Peterson to the sheriff' of Marion county, Indiana,-and for John Heaton to the sheriff of Boone county, Indiana, the latter being made returnable on-the 20th of the same month; that said summons was duly and legally ’served by reading to and within the hearing of said Heaton on the 8th day of January, 1891. Said summons axxd the return -thereon are set out in the affidavit. The return is as follows : “ Came to hand January 7th, 1891. Sexwed, as commanded, by readixxg to and within, the heaxing of the within named John Heaton, Jaxxuary 8th, 1891. John S. Miller, Shexúff B. C.”
It is further stated in this affidavit that afterwards, by the xvritten order and directioxx of the defendants’ attorneys, Ilaxnmond and Rogers, by Rogers, of said firm, the clerk of said coui’t entered the appearance of said Hammond and Rogers as attorneys for said defendants; that said Hammond is the pax’tner of said Rogers, and no excuse is shown why said Hammond did not appear and
Upon the showing made to the court, we can not say it was established that-the court had not acquired jurisdiction of the person of Heaton at the time the default and judgment were entered. The service and return of the summons directed to be served on Heaton, as given in the affidavit of the appellee and as copied by the clerk into the transcript of the proceedings in the cause, give no indication of the absence of the sheriff’s signature, at the timé the defendants were defaulted. The evidence which the transcript affords can not be wholly disregarded. It will be observed, too, that Heaton does not swear that he was not, in fact, served with summons. He makes no attack upon the process, except to assert that the return endorsed thereon was not signed by the sheriff or his deputy when the default was taken. If, at that time, "the return was not signed, hut was afterwards amended- by receiving the signature of the sheriff, the presumption will be indulged, in the absence of a clear showing to the contrary, that the amendment was lawfully made, to the end that the return should declare the truth. An amendment by a sheriff to his return speaks from the date of the return amended, and is the act of the officer as of that date. The return is not the service, but only the evidence of it. Relative to the amendment of returns, see Jackson v. Ohio, etc., R. R. Co., 15 Ind. 192; Evansville, etc., R. R. Co. v. Lawrence, 29 Ind. 622; Dwiggins v. Cook, 71 Ind. 579 ; Turner v. First National Bank of Madison, 78 Ind. 19; Dunn v. Rodgers, 48 Ill. 260; Kitchen v. Reinsky, 42 Mo. 427; State v. Gibson, 29 Iowa, 295.
If it can be said that Heaton was excusable from the employment of counsel because of what Peterson had said to him about engaging the services of Rogers, it follows that he will be bound by the neglect of the latter.
It is made to appear by the affidavit of the appellee that Rogers had a partner in the practice of law at that time, and the showing made to the court by Heaton gives no reason why'-'Ilammond, the partner of Rogers, did not look after:-'the ease. It is not fairly inferable from the affidavit' of Rogers that he was too sick to communicate with Hammond. So far as we can know from the record, he made no effort to communicate with him or either of the appellants; that he was relying largely on the professional courtesy of the appellee’s counsel, he admits. Moreover, we do not think he was excused from giving something of his own personal attention to the case. The mere employment of an attorney, even if it had been by Heaton himself in person, would not relieve him of further responsibility about the case.
Tie was a resident of Boone county, and if he had been on the alert, giving attention to the preparation of his defense, he could have learned the situation and avoided the default. If he was served with summons on the 8th of January, and he does' not deny that he was, he had until the 28th day of that month, the day on which the default was taken, to learn that Rogers and Hammond were not in attendance upon court and were not giving the case attention. Kreite v. Kreite, 93 Ind. 583.
We need not inquire whether there is merit in the defense suggested by Heaton’s motion, for a meritorious defense will avail nothing if a reasonable excuse be not given for suffering the default.
What we have said disposes of the errors assigned, except as to the sufficiency of the complaint, which is not challenged in brief of counsel.
The judgment is affirmed with costs.
Black, J., takes no part in this opinion.