56 Ind. 531 | Ind. | 1877
In this action, the appellant, as plaintiff, ■filed his verified complaint against the appellee, as defendant, in the court below, under the provisions of the last clause of section 99 of the practice act. 2 R. S. 1876, p. 82. This complaint was filed on the 16th day of September, 1875. This complaint is very long; but as the only error assigned in this court calls in question the sufficiency of the facts stated in said complaint to constitute a cause of action, we find it necessary to give a summary of its contents.
The appellant alleged, in substance, that on October 15th, 1874, the appellee commenced an action against the appellant and others, in the court below, to set aside, and have declared void, the appellant’s title in and to certain real estate described, in Spencer county, Indiana, alleging, among other things, that the appellant got his title to said real estate from Catharine B. Uord, and that said Catharine B. Uord got her title from Peter Lindaur, and that said Lindaur got his title from John Uord, and that all of said conveyances were fraudulent and void as to the creditors of said John Uord, all of which would more fully appear by reference to the complaint in said action; that a summons was issued on said complaint, .requiring the appellant and the o.ther defendants to appear in the court below, on the 2d day of its Cctober term, 1874; that the appellant came to said court in due time, and was proceeding to employ counsel and to prepare for the defence of said cause; but before the appellant had employed counsel, or made any defence to said suit, the appellee approached the appellant and talked with him about compromising the case, and, this not being done, the appellee continued his case generally, and told the appellant, “ that the case was continued, for him to go home, and they would see if they could not compromise it;” that the appellant “being a German,
The remainder of the appellant’s complaint in this cause was devoted to a showing, that he had a valid and
The appellee demurred to the appellant’s complaint, for the want of sufficient facts therein to constitute a cause of action, which demurrer was sustained by the court below, and the appellant excepted to this decision. And, upon this ruling, judgment was rendered in favor of the appellee, and against the appellant, for the costs of this action.
The decision of the court below, in sustaining the appellee’s demurrer to the appellant’s complaint, is the only error assigned in this court.
As we have already said, this cause or proceeding was evidently brought under the provisions of the last clause of the 99th section of our practice act. This clause reads as follows: “ The court * * * shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise or excusable neglect, and supply an omission in any proceedings on complaint of motion filed within two years.” This provision of our code of practice has often been considered by this court; and, as a result of the decisions, it may be stated as settled, that no formal pleadings are necessary in the proceedings authorized by the clause cited, beyond the complaint or motion of the party seeking relief. Lake v. Jones, 49
1. “ That he has a meritorious cause of action or defence, as the case may be, which is involved in the judgment from which he seeks to be relieved.” Buck v. Havens, supra.
2. The facts, which tend to show that such judgment was taken against him, through his mistake, inadvertence, surprise or excusable neglect, should be clearly set forth,, in plain and concise language.
And the matters presented in such complaint Or motion should be heard by the court, in a summary manner. Ratliff v. Baldwin, 29 Ind. 16. But, on such hearing, neither counter affidavits nor contradictory evidence should be received on the question, whether or not the party seeking relief from the judgment has a meritorious cause of action or defence, as the case may be. On all other questions involved, any competent evidence, offered by either party, should be heard, as in other cases. Buck v. Havens, supra.
In the case at bar, the appellee demurred to appellant’s verified complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. This was tantamount, in our opinion, to a submission of the cause to the court below for a hearing on the facts set out in the verified complaint. By sustaining the appellee’s demurrer to said verified complaint, the court simply held, that the showing therein made was not sufficient to entitle the appellant to be relieved from the judgment taken against him. The error assigned by the appellant, we think, fairly presents for our consideration the correctness of the decision of the court below.
In our opinion, the appellant showed very clearly and conclusively, in his verified complaint, that he had a mer
The other question in this case is a more difficult one, and that is, whether or not the judgment, from which the appellant asked to be relieved, was taken against him, through his excusable neglect. From a careful examination of the statements contained in appellant’s verified complaint, it has seemed to us, that, if the appellant’s neglect in suffering a judgment by default to be entered against him was excusable, it must result from the fact that the appellant .may possibly have been misled by the acts and words-of the appellee and his counsel, in relation to a compromise, before the term of the court at which the default was entered. On this point we have nothing before us but the ex parte statements of the appellant. These statements, however, are duly verified, and, for the purposes of this case, must be taken as strictly and literally true. From these statements, it appeared, in substance, that the appellant was a German, with a very imperfect understanding of the English language, and but little knowledge of business, and especially of legal proceedings; .and that when the appellant went to court to employ counsel and defend the appellee’s suit, he was met by the appellee, who talked with him about compromising the case, and finally told him the case was continued, for him 'to go home, and they would see if they could not compromise the case; that' the appellant went back to his farm, believing that nothing more would or could be done in the ease without further notice to him; and that afterward the appellee’s counsel went out to appellant’s farm and talked with him about compromising the case.
It seems to us that the tendency of the acts and words
The judgment of the court below is reversed, at the appellee’s costs, and the cause is remanded, with instructions to set aside the default and judgment against the appellant, and the sale thereunder, in the original suit, and to allow the appellant to answer and defend therein, and for further proceedings.