30 Ind. 117 (Ind. 1868), , Smith v. Noe

Citation:30 Ind. 117
Opinion Judge:Elliott, J.
Party Name:Smith v. Noe
Attorney:W. Tilden, J. E. McDonald, A. L. Roache, and E. M. McDonald, for appellant. A. G. Porter, B. Harrison, and W. P. Fishback, for appellee.
Court:Supreme Court of Indiana

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30 Ind. 117 (Ind. 1868)




Supreme Court of Indiana

November, 1868

APPEAL from the Marion Civil Circuit Court.

The judgment is reversed, with costs, and the cause remanded, with directions that the default and judgment against the appellant, Smith, be set aside, and that he be permitted to answer, and for further proceedings.

W. Tilden, J. E. McDonald, A. L. Roache, and E. M. McDonald, for appellant.

A. G. Porter, B. Harrison, and W. P. Fishback, for appellee.


Elliott, J.

On the 18th of June, 1864, Noe commenced this suit against Smith, the appellant, and Hall, on an account or claim assigned to him by Olney Gould. It is alleged in the complaint that Smith and Hall were partners in large contracts for supplying the United States with horses for the army, and desiring the services of Gould to aid them in filling said contracts, they agreed to give him one-eighth interest in the profits that might be realized therefrom; that under said agreement, some 6,200 horses were purchased and delivered to the United States, on the contracts of Smith and Hall. The profits on these amounted

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to the sum of $ 80,000, of which sum Gould was entitled to $ 10,000, which Smith and Hall refused to pay; and that Gould had assigned his claim therein to Noe, the plaintiff.

Smith was not a resident of this State. Hall was served with process, and the cause was continued from term to term, until the November term, 1867, when it appeared by the return of the sheriff of Jackson county, in this State, to a summons directed to him, that he served the same on Smith, by reading, on the 27th of May, 1867.

On the second day of the term last named both Smith and Hall were defaulted. On the 7th day of the term, at the instance of the plaintiff, the case was submitted to the court, on evidence, and on the 9th day of the same term the court found for the plaintiff, and assessed his damages at $ 12,000, and rendered a judgment therefor. The plaintiff then entered a remittitur for $ 2,000 of the judgment.

Afterwards, on the 23d day of November, 1867, and eighteenth judicial day of the same term of the court, Smith filed a written motion, supported by affidavits of himself and others, praying the court to set aside said default and judgment against him, "taken through his mistake, surprise, inadvertence, and excusable neglect."

Smith states in his affidavit, among other things, that he is, and for many years has been, a citizen of the State of Ohio, and that the summons in the case was served on him, by a person representing himself to be the sheriff of Jackson county, Indiana, on Sunday, whilst he was passing through this State, on the Ohio and Mississippi railroad; that about the 1st of June thereafter, he received by mail, from the same person who served the summons on him, as he supposed, a copy of said summons, which he immediately delivered to Mr. Tilden, his attorney at Cincinnati, Ohio, where he (Smith) then resided; that Mr. Tilden advised him that said copy of the summons ought to be forwarded to Messrs. McDonald, Roache, and Sheeks, his attorneys at Indianapolis, Indiana, who had been retained by him in said cause immediately after it was commenced, and more

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than a year before he was so served with process; that Mr. Tilden thereupon agreed to send it for him to McDonald, Roache, and Sheeks, and that he is informed and believes that Mr. Tilden did so forward it by mail; that he is informed and believes that the letter enclosing the copy of said summons was not received by McDonald, Roache, and Sheeks, and that they were not aware of said service until after the default was taken. The affiant further states that when the judgment was obtained, he was at Memphis, in the State of Tennessee, and was not aware that judgment had been obtained in said cause, until Wednesday, the 20th of November, 1867, and was not aware that his presence was required in said cause until Tuesday, the 19th of said month; that relying on his counsel aforesaid to attend to said cause, he did not give the same his personal attention, but waited for and expected them to give him notice when the same might be required of him; that owing to the miscarriage of said letter to McDonald, Roache, and Sheeks containing the copy of the summons, they were not informed thereof until after a default had been taken in said cause.

"And he avers that he has a meritorious defense to said action, in this, viz: That he was not at any time in partnership with said Gould, the plaintiff's assignor; that at the time the plaintiff claims that such partnership existed, this defendant and his co-defendant, Hall, were engaged in some joint transactions in the business mentioned in said complaint; and he is informed that, by some arrangement between said Gould and Hall, exclusively, said Gould was to have some interest in the share of said Hall in the profits of said business; that your petitioner and Hall were to divide the profits of said business equally, and since said transaction, he is informed that said Gould was to receive one-fourth of said Hall's share of the profits of said business; that affiant was not aware during the progress of said business as to the exact terms of the contract between said Hall and said...

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