56 Ind. 331 | Ind. | 1877
Complaint by the appellees, against the appellant, on a promissory note. On the first day of the term, the parties appeared, and the appellant was “ ruled to answer on or before the next calling of the cause,” to which rule no objection was made. On the fifth day of the' term, the appellant not having complied with the rule, the court, upon the regular calling of the cause, closed the rule against him, and “entered judgment as upon a default.” 2 R. S. 1876, p. 67, sec. 69. On the sixth day of the term, the appellant moved “ to vacate and set aside the judgment taken against him,” and allow him to file his answer in the case; but the court overruled the motion, and the appellant reserved his exception to the ruling. The motion was supported by affidavits.
We take the following facts from the bill of exceptions:
That the parties appeared on the first day of the term, and the defendant was “ ruled to answer on or before the next calling of the cause.” “ That the said defendant, James S. Jelley, was on said day, and now is, a practising attorney in said court, and attended to said cause as his own attorney; that on the above named day, when said rule to answer was taken, and on each succeeding day of said term of court, the court announced, in the hearing of said defendant, that the rules to answer, and file other pleadings, would be closed, in this and all other causes, on motion, on the day following the entry of such rules, unless discharged, or in the absence of good cause shown why said rules should be extended; that the defendant, on the second judicial day of said term of court, when said cause was called in its order for a discharge of the rule to answer, hereinbefore set forth, requested the court to extend said rule—no motion being madé to close the
It is urged on behalf of the appellant, by his counsel, that the court, on the first day of the term, had no power to grant the rule requiring the appellant to answer on the next calling of the cause. This might be true, if there had been no appearance to.the action; but in this case the parties had appeared, and the rule was granted, without any objection from the appellant. After the defendant had appeared, it was competent for the court to grant the rule, upon the first or any other day of the term. And
It appears very plain to us, from the facts stated in the bill of exceptions, that the court, and the counsel for the appellee, were very liberal in extending the time to allow the appellant to answer. He had a full and fair opportunity to defend his cause, and if he chose to neglect or waste his day in court, he must not complain, even though he has lost his rights. His conduct was such as would not commend itself to the approval of a court.
The above final judgment was rendered by the circuit court, on the 6th day of November, 1874. On the 13th day of November, 1874, the appellant prayed an appeal to this court. On the 20th day of January, 1875, he filed his appeal bond in the court below, and, on the 21st day of April, 1875, filed the transcript in this court. On the 23d day of March, 1877—nearly two years after an appeal had been taken to this court, and more than two years after the rendition of the final judgment below, after the above opinion had been written, and when the cause was about to be decided in this court,—the appellant filed his motion in the court below “to correct an entry made in said cause on the 2d day of November, 1874, in said court,” upon the alleged ground, that “the said defendant was not in said court on said day, at any time, neither in person or by any authorized attorney;” which motion was supported by several affidavits, made by different persons. Counsel for the appellees below moved to reject the motion to correct the entry, which motion the court sustained. Exceptions were reserved, and an appeal taken to this court from these subsequent proceedings, and the matter brought here as an independent case. "We are of opinion that the two records constitute but one case. The subsequent proceedings to correct the entry would be unintelli
The judgment is affirmed, with ten per cent, damages and costs.