27 Ind. 37 | Ind. | 1866
This was a complaint by Losance, the appellee, for the specific performance of a contract for the conveyance of real estate. As originally filed, the complaint was against Nutting alone.
At the first term after the service of process on Nutting, the cause was continued, at the instance of his attorney, owing to his unavoidable absence during that term.
At a subsequent term, Nutting appeared and filed an answer in denial of the complaint, and also setting up matter in avoidance, and alleged that after the contract with the plaintiff, and before the commencement of the suit, he had sold and conveyed said real estate to Sehnvpe and House. A replication was filed to the answer, and the cause was' thereupon continued by agreement of the parties, with the leave of the court to the plaintiff to amend his complaint by making said Schnipe and House defendants thereto. The clerk, however, omitted to enter the leave to amend the complaint. At the succeeding term of the court, on the plaintiff’s motion, a nunc pro tunc entry of said leave to' amend was made, by order of the court, and the plaintiff' then amended his complaint by making said Schnipe and House defendants, and charging them with notice of his equity at the time of their purchase. The record then states: “And it appearing to the satisfaction of the court, by the return of the sheriff on the summons issued herein, that notice of the pendency of said action has been given to Nortz Schnipe and Jacob House, defendants herein, more than ten days prior to the first day of the present term of this court, and the said Ebenezer Nutting, Nortz Schnipe and
Wo cannot say that the coux’t erred ixx x’efusing to set aside the finding and judgment. The réason stated ixi the affidavit for the absence of Nutting at the time of trial is, that he had employed Scobey, an attorney of said court, to attend to said case for him, and expected that he would do so, or procure the sex-vices of some other attoxmey in his stead, ixx case of his absence; that he confidently supposed that said Scobey was in attendance at said coxxx’t until the evening befox’e said trial, when he received a letter from him, saying that he could xxot attend said court; that he, the affiaxxt, left home the next morning axxd came to the court as soon as ho could, bxxt on reaching thcx’e learned that judgment had been rendered against him. The affidavit, howevex*, failed to show that he had any defense, in fact, to said action, or that he had any witnesses or other evidence, the production of which would likely produce a diffex’Oixt result on another trial. No valid reason, therefore, was shown why the finding and judgment should be set aside, or that any injxxry had resulted to Nutting by the trial in his absence.
Another objection urged to the proceedings in the court below is, the refusal of the court to require the plaintiff' to give a bond for costs. This objection is not presented by the record. The code provides that a transcript of motions, affidavits and other papers, when they relate to collateral matters,
The only remaining error complained of is, that at the same term of the court at which Schnipe and House were made parties, by an amendment to the complaint, without any appearance on their part, and the appellants claim without process, they were defaulted and judgment rendered against them. The errors are assigned jointly by all the appellants. However erroneous this action of the court may have been, it is not a matter of which Nutting can complain, as it relates to Schnipe and House alone.
We cannot say, however, that there was no. process served on them. True, none is copied into the record; but it appears as a proper entry, and as part of the proceedings of the court, that it was made to appear to the satisfaction of the court, hy the return of the sheriff on the summons issued in the cause, that notice of the pendency of the action had been given to Schnipe and House more than ten days prior to the first day of the term of the court. The summons and return of the officer in such a case are properly parts of the record, and it was the duty of the clerk to have cei’tified them, but his failure to do so does not carry from the record the statement that process had been duly served. Wo must, therefore, assume that the default was after the service of the process.
A majority of this court, however, are of opinion, as Schnipe and House were not made parties to the original complaint, and no cause of action was shown therein against them, that the issuing of the process against them in vacation, without an order of the court, and before the complaint
The judgment, as to Nutting, is affirmed, with costs, ánd as to Schnipe and House, is reversed, with costs.