53 Ind. App. 373 | Ind. Ct. App. | 1913
— This is an appeal from a decision of the Lake Circuit Court, rendered on an application to be relieved from a judgment taken by default.
The record discloses that the original complaint in the action in which such judgment was taken was filed in said court, May 6, 1908, and on the same day appellant was served with a summons to appear and answer such complaint May 25, 1908. At the September term of such court, to wit: September 8, 1908, the appellant appeared by his attorney, L. T. Meyer, and filed a motion to make the complaint more specific. During the same term, to wit, on Sept. 23, 1908, appellant filed his affidavit for a change of venue from Lake County where said cause was then pend
It is open to question whether appellant by the affidavits accompanying his petition shows a sufficient excuse for the continued delay and lack of attention given to his case, evidenced by the record, but in any event, when this showing is considered in connection with the counter-affidavits, we are convinced that the decision of the trial court on such application was not only supported by some evidence, but that it was clearly right on the evidence and in accord with the decisions of the Supreme Court and this court. Wells v. Bradley, Holton & Co., supra; Parkinson v. Thompson (1905), 164 Ind. 609, 625, 73 N. E. 109, 3 Ann. Cas. 677; Hoag v. Old People’s Mut., etc., Soc. (1891), 1 Ind. App. 28, 33, 27 N. E. 438; Schofield v. Starnes (1892), 5 Ind. App. 457, 458, 32 N. E. 590; Moore v. Horner (1896), 146 Ind. 287, 45 N. E. 341, and authorities cited.
Judgment is therefore affirmed.
Note. — Reported in 101 N. E. 737. See, also, under (1) 3 Cyc. 366; (2) 3 Cyc. 377. As to what measure or sort of negligence or mistake by defendant in suffering judgment to be taken against him entitles him to have the judgment vacated, see 96 Am. St. 109. As to statutes authorizing vacation and setting aside of default judgments, see 58 Am. Dec. 392.