*1 rule Orms’ for an motion reviewable abuse discretion. v. State Rowe
N.E.2d 852. Orms has failed
demonstrate
an abuse.
Gerber State
Affirmed.
Reported at
Note. —
Moe Koe. July 15, Rehearing 2-174A13. September 2, [No. Filed denied Transfer denied March 1976.] *2 Greenwood, appellant. Anteliff, for G. Clifford Crist, General, Gary Attorney M. Sendak, Theodore L. Attorney General, appellee. Deputy
CASE SUMMARY father) (the Defendant-Appellant Moe Buchanan, J. judgment denying his Petition for Relief appeals from a claiming prior Judgment Trial that Pursuant Rule a against action should be him a neglect. mistake, surprise aside because of and excusable We affirm.
FACTS Appellee The facts and evidence most favorable to and are: below gave County On June Koe birth in Marion to a petition child born out wedlock filed a in the and Juvenile County July 20, of Marion Court to establish Moe personally Moe the father. was served with summons immediately “Legal Indianapolis visited the Aid Services” according and, testimony, to his that he did not counsel at the need trial. high carpenter education,
Moe, ap- school then prior peared Court to the in Juvenile date Also sexual relations with Koe. at that admitted deputy time about prosecutor he had conversation with the need him and counsel was advised judge go the trial wish know if he intended to attorney. without ahead an Moe stated that “he wasn’t prove father of this child and it himself”. trial, January On the appeared counsel, participated without Koe, attempting raise defense. to cross-examine began, proceedings he was assisted court. Before the inquired proceed court also if he had chosen attorney, inquiry replied himself without an to which against in the affirmative. A entered Moe on date, January 24, 1972, proceeded then to retain perfect appeal, paying him $175. Neither the nor Moe action until Decem- took ber appear of 1972. Moe was summoned to Court in Juvenile contempt sought attorney. time to locate *3 Apparently attorney he represented did so because him Contempt Hearing at Citation on December Thereafter, Moe attorney hired proceeded another who file Judgment pursuant a Verified Petition for Relief from February Rule TR. 60 15, 1974, on alleging that Moe a had good judgment against and valid defense to the that him and judgment was a mistake, surprise result of excus- neglect part. able on his petition took also the same position mistake, surprise of neglect and excusable as to Moe’s failure to take the paternity from January 24, 1972. hearing petition,
At the this on Moe testified that he had Legal Indianapolis Aid Services that unnecessary for him to have an paternity ignorant legal pro- that him at he was ceedings, military that as of his a result service Nam Viet developed poisoning adversely he blood his affected fertility, that he unaware no action had been taken perfegt by his .appeal until December, 1972. analysis a semen procured paternity he After bring granted he could urged trial was that new if a these tests. also testify to the results of as in to doctors unable 15, 1971, and was November he married on stated marriage. a result of that to have children as 60(B) (1) Petition and Moe’s TR. The trial court denied paternity set aside refused
ISSUE Only presented: issue is one refusing set its discretion
Did the trial abuse court mistake, sur- paternity judgment Moe’s aside the due neglect? prise or excusable misleading given contends that advice because Legal
him Aid counsel was Services provide meritorious paternity trial a and because fertility retrial to his lack defense on as because appeal, to take (1). 60(B) should be excusable under TR. acting replies slept rights on Koe and that if proceedings, as his even Services, the mistaken advice of Aid judgment against resulting render the Moe one mis- take, surprise neglect. Further, or excusable Koe points to showing by good lack of Moe that has a and meritorious produced defense no medical evidence whatsoever.
DECISION CONCLUSION —The court did not abuse its discre- refusing paternity judgment tion in to set aside the because surprise mistake, neglect. *4 any showing Resolving sufficiency doubt as to the neglect do,1 in favor of excusable Moe as are bound to paternity judgment plea for relief amounts Company (1939), App. Taxi 627, United v. Dilworth 106 Ind. 20 N.E.2d 102
only personally this. He was served with summons prior Services visited Aid was advised he need assistance counsel hearing. He also visited the Juvenile Court he con- where deputy prosecutor ferred with the and declared he would go attorney, participated ahead without an he did. He proceedings counsel, without benefit did not raise defense in behalf. makes claim illegality or defects of the trial. After went against him, hired counsel on the (January 24, 1972), but his nothing act and Moe did approximately thereafter eleven months. posture bring
In this Moe seeks to himself within the terms 60(B) (1), of Trial Rule which in one form another has provides: been the law It since 1881. — — “(B) Newly Mistake Excusable discovered Fraud, etc. upon On motion and terms as evidence — may just party legal repre-
are sentative from a final ceeding the court relieve a or his judgment, order, default, pro- for the reasons: surprise, “(1) mistake, neglect; or excusable .. .” showing In addition to entered against “mistake, him was the result surprise,
neglect”, Moe must also show that has meri against torious defense the claim him. re Both quirements are in order judgment: Kreczmer Allied Constructon Co.
Ind.
Cantwell v. Cantwell
(cert.
143 N.E.2d
denied,
356 U.S.
712); Hoag
S.Ct.
L.Ed.2d
Jeffers
159 N.E.
Strickland O’Rear
App. 247,
(transfer denied)
;
N.E.2d 902
Swartz v.
App. 635,
Swartz
The crutch on which judgment aside, is him to the entitles have believing by Aid Services into misled litiga- lawyer represent him in such did need a serious not authority position, No is cited for this novel nor do tion. any. know of analogy supporting present any
Neither does Moe us contrary position occurs claim relief but one to us. long ago in
As as 1883 has been the law Indiana the of a mere mistakes of law not authorize vacation Bragunier Bowen, al. v. et Lowe v. Hamilton 132 Ind. 1117; Carty Toro 223 Ind. N.E. given by of de N.E.2d 434. each these cases advice was by party or fendant’s the that it was sheriff third appear not the the defendant at or on held of the Each not return date summons. defendant was failing appear. responsibility Typical of of his in relieved the refusal of Indiana courts to find mistaken on reliance party as excusable advice of third conduct language Carty Toro, supra. in court’s v. appellant may put upon at “But not all the blame years torney. we will person judgment, A mature this and evidence appellant any in assume the absence idly ignore may contrary, not a summons to defend responsibility independent action. His of that of he is advised. Kreite Kreite whom 583; Thompson Harlow N.E. 474.” N.E.2d at 436. supra: Hamilton, again in Lowe
And
attorneys
true,
he states that he
“It is
that
against him, but
be
personal
could
taken
facts
of the
not show
he made
statement
he does
knowledge
attorneys,
they
con-
or that
had
to his
attorneys
cross-complaint.
have
If his
tents of
knowledge
pleading, and,
of the contents of this
with such
knowledge,
personal
advised him that no
against him,
he taken
this
would
be the kind of mis-
contemplated by
con-
statute
immediate
under
sideration.
every
“If a
were to
set aside
be
occasion
parties
when the
make
there
one
should
a suit
law,
a mistake
a science so intricate as that of the
stability
judgments.”
would
little
be
If Moe failing appear have “excused” at the trial *6 counsel, on the mistaken advice of how can claim excusable when he did attend trial? shows no disability proceedings. or error in His mistake the. combining lawyer in the roles of client. and legal
As he was under duty no counsel, to obtain his mis- take rise even law, level of a mistake rather constituted an error of . . . kind of contemplated by excusable conduct “mis- the words take, surprise neglect”.
The other crutch on which Moe leans to show excusable per (B) mistake TR. (1) 60 is that paternity on the of the (January 24, 1972) lawyer he hired a appeal and he negligently However, so. testimony is nothing that he did more from time until sought December attorney when he in contempt him the citation. general long rule has been firmly established negligence negligence of the is the of the client relief from a taken default will granted
not be negligence unless is shown to be excusable. Spaulding Thompson v. (1859), 477, 12 Ind. 221; 74 Am. Dec. Heyns (1922), Smith v. 565, App. 563; 136 N.E. (1921), Delewski v. Delewski App. 44, 76 229; Ind. 131 N.E. Krill (1920), v. Carlson 74 App. 47, 612; Ind. 128 N.E. Kreczmer v. Allied Construction Co., supra.
105 allowing essen- default Negligence in appeal lapse. negligence allowing time to tially as in the same negligence event, the unexcused In either excuse client, attributable emerges the facts us. before procedures. appeal normal to avoid TR. is not a vehicle Dept. Fire Young Volunteer American Warner v. 140, 145, App.
Ind. diligent having attorney), not first been (and timely subject have error that could of a pursuing expired 59,2 may to revive an TR. not use TR. 60 under v. Young Dept., Fire remedy. American Volunteer Warner Practice, Harvey Townsend, supra; Indiana Vol. p. 222. refusing
Thus,
exercised
the trial court
sound discretion
set aside the
conduct,
failed to demonstrate excusable
question
demon
reach the
he has
need not
whether
good
strated
and meritorious defense to the
v.
Heaton
Peakerson
Ind.
N.E.
action.
1133;
v.
Co., supra;
Kreczmer
Allied
Construction
Woodard
Killen
Cars
195;
Nash
N.E.
216;
v.
Marty
Nord
Crump
Hill Buck
Havens
*7
Rooker Bruce
86, 89,
White, J., concurs; P.J., Sullivan, separate concurs opinion. Opinion
Concurring Sullivan, concur the result ma- reached P.J. I Judges White, I jority opinion. Like Buchanan and conclude grant error the trial court to refuse that was for it was error 60 Motion to refuse to Trial Rule ground surprise (A) (2) allows as “accident 2. TR. guarded ordinary against”. prudence could not have determining January pa- however, ternity. solely upon grounds so, I support evidence is sufficient to con- record a reasonable part appeared clusion on of the trial that Defendant court hearing consciously proceed chose testimony this, without counsel. I believe the import: is of crucial record “He said he didn’t [Defendant] attorney] want because he wasn’t father of this [an child prove it and he could himself.” Reported at 330
Note. — Kappes
Dan State Indiana. July 16, 1975.] [No. 2-974A225. Filed Stephen Cuthbert, Tippecanoe J. Defender, Public of Lafa- yette, appellant. Sendak, Attorney Wilson,
Theodore L. General, Wesley T. Attorney Deputy General, appellee. Kappes, defendant, appealing Curiam Dan
Per second-degree burglary,1 conviction of for which he was sen- 1971, 35-13-4-4, (Burns 1956) 1C Ind. Ann. Stat. 10-701 § reads pertinent part as follows: “(b) any boat, wharf-boat, Whoever breaks and enters into other