43 Ind. App. 35 | Ind. Ct. App. | 1909
At the same term, January 25, 1906, appellee Baugher filed his motion to set aside said judgment rendered against him, and the default entered against him upon the cross-complaint of the appellants, and to permit him to enter his appearance to the cross-complaint of the appellants, and to file his answer thereto and to file a cross-complaint. On March 19, 1906, appellee Baugher filed his own affidavit and the affidavit of John W, Hanan, in support of his said mo
Thereupon appellee Baugher, by his attorney, entered his appearance to the cross-complaint of the appellants, and filed his answer of general denial thereto, and also his cross-complaint against his eodefendants and the plaintiff. The appellants, by their attorneys, and appellee Phillips, by her attorney, each entered appearance to the cross-complaint of appellee Baugher.
On March 27,1906, the commissioner made report of sale, which the court approved, and the commissioner was ordered to execute a deed to the purchaser, which was done and approved by the court, and, upon the order of the court, the deed was delivered to the purchaser. May 29, 1906, appellants filed their answer in two paragraphs to the cross-complaint of Baugher, the second paragraph being a general denial, and the first set forth the proceedings in the cause down to and including January 3, 1906, by reason of which it was claimed the cause of action stated in the cross-complaint of appellee Baugher had been fully settled and adjudicated, and that such judgment was in full force and effect. To this second paragraph Baugher filed his. reply, a general denial, and a second paragraph, wherein he alleged that he never entered an appearance to the cross-complaint
The cause was tried by the court, and at the recpiest of the appellants the court made special findings and stated conclusions of law, on which judgment was rendered. The land was apportioned among the parties as their shares were indicated in the complaint of Nancy Phillips, she and appellee Baugher being awarded equal portions and the remainder to the appellants equally.
There is no question but that the rights of the parties were correctly adjudged, or that they did not each receive by the judgment rendered, from which this appeal is taken, the share of land, or its proceeds, to which they severally were entitled legally.
Whether the court erred in sustaining the application of Baugher to set aside his default upon the cross-complaint of the appellants, and to permit him to appear thereto and to plead, is another question, and is to be considered separately from the pleadings filed after the default had been set aside and said permission had been granted. The application was made at the term at which the interlocutory judgment of partition was rendered, and while the cause was in fieri.
The judgment of January 3, 1906, did not in terms quiet the title of the appellants, but it was thereby adjudicated
The only answer of Baugher to the complaint then appearing in the record was signed by the attorneys of appellants, whose interests were adverse to the interest of Baugher. The judgment which disposed of his interest, as well as that -of the other parties, was entered upon a default of Baugher on the cross-complaint of appellants and upon the', submission of the cause for trial -on the complaint and the answers, thereto and the issues joined thereon and the cross-complaint of the appellants and the answers thereto and the issues joined thereon. No issue was tendered between the codefendants except that tendered by the appellants’ cross-complaint, and the court, professing to proceed thereon, disposed of the interest of Baugher.
As was said in Hoag v. Old People’s Mut. Benefit Soc. (1891), 1 Ind. App. 28: “The courts, even independently of statutes, possess and exercise a very large discretion in vacating judgments by default, for the purpose of permitting a defense to be made upon the merits, and in deciding upon the question of diligence the aetion of the court will be reviewed only in extreme cases, involving an abuse of the
It does not appear to us that the court below abused its discretion, while it does appear that this action secured to the parties their exact legal rights. Judgment affirmed.