17 Ind. App. 224 | Ind. Ct. App. | 1897
The only error assigned by appellant herein is the alleged error of the lower eonrt in overruling appellant’s motion for a new trial. The motion for a new trial is based solely upon the fact, as contended by appellant, that the court misled appellant and appellant’s counsel as to when this cause would be tried. In support of the motion and as a part of the same, were filed the affidavits of counsel for appellant and the affidavit of appellant’s agent, William T. Jones, stating therein the following facts and circumstances, viz.: That, on the-day of January, 1896, the cause was set for trial in the Vigo Circuit Court, at which time said Jones appeared, representing the defendant, and together with his attorneys, was present and ready for trial; that at said time another cause was on trial and being heard by the court, and the court informed affiant that this cause would be tried the next day; that affiant was present with his counsel on the next day, but on account of the same cause, as before stated, the court said that this cause would be continued until the following day; that on the following, or the next day thereafter, appellant and counsel, finding the court yet engaged in the trial of other causes, went to the court and informed the court that affiant had business for the following day, and that appellant’s counsel, Mr. Beecher, told the court that he had a cause set for trial at Sullivan on the-day of January, and that he had arranged to leave on the following afternoon to consult about the case, and it was impossible for him to get ready for the trial, and that the court then said to affiant that he would continue and pass the case indefinitely; that relying on the statement of the court, affiant instructed the witnesses to go, and he would notify them when they were wanted; that said conversation oc
Tbe other affidavits are substantially tbe same and we set out tbe substance of tbe affidavit of the man Jones, because it is admitted that be was tbe agent for appellant and was at tbe time acting for appellant in tbe matter.
It will be observed that tbe affidavit of appellant’s agent nowhere states that appellant bad a valid defense to tbis action; that it wholly fails to point out to the court any defense that appellant might have made if tbe motion for a new trial bad been sustained. It also shows that at tbe time of tbe trial appellant was, by her agent and attorneys, in tbe court room, and it nowhere shows that tbe court refused or prevented tbe appellant filing a motion and affidavit for a continuance.
In these important particulars tbis cause differs materially from tbe case of Edsall v. Ayres, 15 Ind. 286.
It would seem to us that the affidavit of appellant’s agent in support of the motion for a new trial, under the circumstances stated in the affidavit, ought to have informed the court not only that appellant had a good and meritorious defense to this action, but it should have set out specifically what the defense was, so that the court might determine whether any good would come from a retrial of the cause.
If we treat the judgment in this cause as a judgment by default, with appellant and counsel not present at the time it was taken, still in a motion to set aside such default ‘counsel for appellant would not contend that such motion would be sufficient unless it contained the specific statement of a valid defense. The record in this cause shows a trial and verdict by a jury. To set this verdict aside, appellant’s counsel cannot contend that less would be required of them than would be required in the setting aside of a default.
We find no error in the record".
Judgment affirmed.