55 Ind. App. 203 | Ind. Ct. App. | 1913
This is an appeal from a judgment against appellants overruling their motion to set aside a judgment taken against them on default. The only error assigned is that “The court erred in overruling appellants’ motion to set aside the default and judgment rendered in said cause on the 30th day of January, 1911.” The original judgment was against Pred D. Kruse and his bondsmen, the other appellants, on a contractor’s bond for an alleged breach in failing to pay for certain stone used by said Kruse in the performance of a contract with the Board of Commissioners of White County, Indiana. The examination of. appellant, Pred D. Kruse, was taken out of court by appellee and duly filed and published. The appellants appeared in the White Circuit Court and filed affidavits for change of venue from the judge and from the county. The motion for change of venue from the county was sustained and the venue was changed to the Superior Court of Tippecanoe County. Of date, May 12, 1910, the record of that court, in this cause, contains the following entry: “Come the parties by their attorneys and by agreement of the parties on docket call the court sets this cause for trial by the court on June 10, 1910, and day is given.” Prom some cause not apparent from the record, the case was not tried at that time and on January 9, 1911, the record shows the following entry: “Come the parties by their attorneys and on motion and by agreement of the parties the court sets this cause for trial by the court on January 30, 1911, and
The motion to set aside the default is long but in substance charges that the defendants had employed R. J. Million, an attorney of White County, to represent them in securing the change of venue and to defend them in the suit; that the defendant, Fred D. Kruse, had a conversation over the long distance telephone with E. B. Sellers, the attorney for the plaintiff in the suit, on Saturday, January 28, 1911, in which he asked that the trial be postponed on account of sickness in his family and that he was informed by said Sellers that he did not think the case would be tried on that day for the reason that he expected counsel in a kindred case set for trial on the same day, would secure a continuance which would postpone the trial of
The motion was resisted and counter-affidavits of Emery B. Sellers and R. J. Million were filed. In substance the affidavit of Sellers denies that he in any way led the defendants to believe that the case would not be tried on the day named, and asserts that both in said telephone conversation on January 28 and by letters written on' January 17 and January 28 he had informed defendant Kruse, the case would in all probability be tried on January 30; that he had also communicated with R. J. Million, attorney for defendants, who knew the ease was set for trial on January 30. The affidavit of R. J. Million shows that he had been the attorney for the defendants and that on January 20, he wrote Pred D. Kruse and mailed the letter at Monticello, Indiana, to his home in Port Wayne, Indiana, and informed him that the case was set for trial on January 30 at Lafayette, Indiana, and that he would not attend the trial unless his fee for services was .paid to him in advance of the trial and requested him to advise him by return máil; that he did not write him until January 28 when without paying or offering to pay him any part of his fee or expenses, he requested him to go to Lafayette on January 30 and secure a continuance of the trial.
Judgment affirmed.
Note.—Reported in 103 N. E. 663. See, also, under (1) 23 Cyc. 742, 744; (2) 3 Cyc. 366, 378; (3) 3 Cyc. 341; 23 Cyc. 895.