31 Ind. App. 6 | Ind. Ct. App. | 1903
Suit by appellants on a note. Appellants had judgment, which was afterwards set aside, and upon a trial judgment was rendered for appellee. The first judgment was set aside under that provision of the statute authorizing the court, in its discretion, -to relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect. §399 Burns 1901. Of this action of the court complaint is here made; also the denial of a new trial.
Counter affidavits were filed by appellants and their attorneys, stating, among other things, that appellee’s attorneys were present in court when the cause was called for trial December 3, in the forenoon of that day, and at the request of appellee’s attorneys the cause was not submitted to the court for trial until the afternoon session.
Appellee did not, strictly speaking, suffer a default. The statute does not. use the term default. It gives a party relief from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, whether the judgment is taken against him by default, as that term is usually understood, or not. He had pleaded his defense to the complaint. If the facts pleaded in his answer were true, there was no liability on the note. He was guilty of no neglect except as to attending the trial. We can not say there was any abuse of discretion on the part of the trial court in concluding that upon the showing made by the affidavits, his neglect was excusable. It is and has always been the policy of the law to dispose of eases on their merits, and a statute of this character, being remedial, should be liberally construed. Tbe affidavits show that it was his intention to attend the trial; that he was necessarily away from home; that he endeavored to keep his whereabouts known so that he could be communicated with; that through the mistake or fraud of some one he failed to receive the communication by telephone, and that his attorneys endeavored to inform him of the time of the trial by letter. He also sufficiently shows that he has a defense to the action. Each case of this character must be determined upon its own particular facts, and the conclusion of the trial court will not be disturbed where it is supported by some evidence. Williams v. Grooms, 122
Upon the material questions in the case the evidence is directly conflicting. We can not weigh it to determine the preponderance. There is evidence to support the verdict. Judgment affirmed.