92 Ind. 296 | Ind. | 1883
Appellant filed against appellees a complaint consisting of two paragraphs. The first to enjoin proceedings under an execution; the second to set aside a default and judgment, and enjoin proceedings under an execution issued upon the judgment.
A demurrer was overruled to the first paragraph and sustained to the second.
An answer was filed to the first paragraph, consisting of two paragraphs; the second is a denial, and a demurrer was. overruled to the first.
A reply was filed in two paragraphs; the first was a denial, and a demurrer was sustained to the second.
There was a trial by the court, finding for the defendants, and, over a motion for a new trial, judgment was rendered for the defendants for costs.
The rulings against appellant upon the demurrers, and the overruling of the motion for a new trial, are assigned as errors.
The objection urged against the second paragraph of the complaint is, that it does not state facts sufficient to show excusable negligence in permitting the default to be entered. Upon this question the paragraph substantially states that the summons served upon him was made returnable on Saturday, the last day of the October term, 1880; that immedi
The court erred in sustaining the demurrer to the second paragraph of the complaint. As the judgment must be reversed for this error, it is unnecessary to investigate and decide the other errors assigned.
Pee Cueiam. — It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be and it is in all things reversed, at appellees’ costs, and that the ease be remanded, with instructions to the court below to overrule the demurrer to the second paragraph of the complaint, and