Ayrshire Coal Company v. Thurman

• Decision Date: 25 June 1920
• Docket Number: 10,401
• Citation: 127 N.E. 810,73 Ind.App. 578
• Parties: AYRSHIRE COAL COMPANY v. THURMAN
• Court: Indiana Appellate Court

127 N.E. 810

73 Ind.App. 578

AYRSHIRE COAL COMPANY v. THURMAN

No. 10,401

Court of Appeals of Indiana

June 25, 1920

From Pike Circuit Court; John L. Bretz, Judge.

Application by the Ayrshire Coal Company for relief from judgment by default in favor of James E. Thurman. From a judgment denying the application, the applicant appeals.

Reversed.

Lucius C. Embree and Morton C. Embree, for appellant.

Harry W. Carpenter and R. W. Armstrong, for appellee.

DAUSMAN J. DAUSMAN, J. DAUSMAN, J., dissents.

OPINION

DAUSMAN, J.

The action out of which this controversy arose was instituted by the appellee against the appellant to recover damages for personal injury due to negligence. A summons was served on the defendant commanding it to appear on February 27, 1918. On March 5, 1918, the defendant was defaulted. Thereupon the court heard evidence as to the amount of damages to be assessed, and rendered judgment for $ 5,000 and costs. On the next morning the defendant filed its verified motion to be relieved from the judgment, and with its motion also filed the affidavit of Lucius C. Embree.

The material facts stated in the motion and affidavit are as follows: "That the defendant had employed as its counsel for the purpose of defending against the action the firm of Embree & Embree; that said firm is composed of Lucius C Embree and Morton C. Embree; that the management of the defense was entrusted particularly to the care of Lucius C Embree; and that these lawyers reside in Gibson county. That on February 25, 1918, Lucius C. Embree was in the Pike Circuit Court and then in the presence of Frank Ely, a member of the bar, informed the court that Embree & Embree represented the defendant and requested the court to note their appearance accordingly; that he also informed the court that the return day named in the summons was February 27, 1918, and requested the court to enter a rule requiring his client to answer on March 6, 1918; that the court apparently assented to the request and immediately wrote something on the judge's docket; that thereupon said Embree informed the court that his firm also represented the defendant in the cause of Williams v. Northern Coal Company et al., then pending in said court, and requested the court to extend the rule requiring answers to interrogatories in that cause to and including Wednesday, March 6, 1918, and to that request the court also apparently assented and immediately wrote something on the judge's docket. That Embree did not examine the writing on the judge's docket but departed from the court fully believing that the time for filing answer in the case at bar had been extended to and including March 6, 1918. Subsequently it developed that the court had designated on the docket March 4, 1918, as the limit of time within which to answer the complaint. That on March 4, 1918, Lucius C. Embree was in court and requested and obtained another extension of time in which to answer the interrogatories in the Williams case, but did not then file answer in the case at bar because he wished to re-examine the complaint to determine whether or not he ought to demur thereto; and that he again left said court intending to return on March 6 to discharge the rule herein." The motion discloses a meritorious defense to the action; and with the motion the defendant tendered and offered to file an answer in denial.

Harry W. Carpenter, counsel for the plaintiff, filed his affidavit in which he sets forth his version of the matter, the material averments thereof being as follows: "That Lucius C. Embree was in the Pike Circuit Court on Feb. 25, 1918; that Embree then knew that said cause was pending in said court and knew that the return day was only two days in the future; but that Embree then refused to appear for the defendant until the day stated in the summons should arrive. That it was on Feb. 27, 1918, the return day, when Embree requested the court to enter the appearance of his firm for the defendant; and that thereupon the court wrote on the docket the following words, viz.: 'Embree & Embree appear, and ruled to answer by 25th day'; that by said rule the defendant was required to answer the complaint on March 4, 1918, that being the 25th day of said term; that Embree was in said court on March 4, 1918, and did not answer the complaint or give any reason for not doing so, but refused and failed to file an answer in said cause; that the plaintiff waited until March 5, 1918, for defendant to answer, and because of his failure so to do, the defendant was then defaulted. That rule No. 14 of said court was then in force and in the following words:

'All parties and attorneys, whether local or foreign, must take notice of all proceedings had in any case wherein they are interested, and be prepared to comply with any order or rule of the court under these rules. To know the status of cases frequent examination of the court record and proceedings is advised. The clerk will not be required to give notice to any parties or attorneys of the condition of their cases or any ruling of the court touching the same.'

"That Embree knew on March 4, 1918, while then in said court, that said rule was pending against the defendant; and that the default was taken in compliance with Sec. 410 Burns Ann. St. 1914."

The record discloses that the motion was set for trial on April 22, 1918, at which time the matter was submitted for determination. The foregoing affidavits constituted the only evidence adduced. The motion was overruled and the court gave an exception to the appellant. An appeal was prayed, granted, and duly perfected as a term-time appeal. The following errors are assigned: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the Pike Circuit Court did not have jurisdiction of the subject of the action; (3) that the court erred in overruling the motion for relief from the judgment; and (4) that the court erred in overruling the motion for a new trial.

The appellee has moved to dismiss the appeal on the ground that the action of the court in overruling the motion for relief from the judgment rendered on default does not constitute a final judgment from which an appeal may be taken.

DAUSMAN, J.--This proceeding comes within § 405 Burns 1914, § 396 R. S. 1881. That section of the Code does not prescribe the details of the procedure. The task of formulating specific rules of procedure under that section was left to the courts. Frazier v. Williams (1862), 18 Ind. 416. It must be confessed that in the procedure thus created there is much confusion. No definite plan has been outlined and consistently followed. There is no continuity or consistency in the decisions relating to the various phases of this subject. This vexatious condition is due to the attempt to maintain an artificial distinction between a proceeding for relief commenced within the term and a proceeding commenced after the term at which the judgment on default was rendered. However, we will not now enter upon a general discussion of the subject or attempt to rectify the entire procedure relating thereto, but will confine ourselves to the questions here presented.

We realize that the entry made by the court to express its decision on the motion is not a formal judgment. It is not the amplified language of a formal judgment. It is not stated in the usual form which has been crystallized by long usage. See Neyens v. Flesher (1907), 39 Ind.App. 399, 79 N.E. 1087. The court might have made a finding and rendered a formal judgment, if a fit terminology could be found for that purpose.

While the courts have held that the application, where made at the same term at which the judgment on default is rendered, should be in the form of a motion, nevertheless in the very nature of things it cannot be an interlocutory motion. Notwithstanding the incongruities of the procedure, the Supreme Court and this court for many years have recognized such rulings as final judgments. The decision thus rendered is the sentence of the law pronounced upon the facts, and effectually puts an end to the entire controversy. It can be nothing less, therefore, than a final judgment. Moore v. Horner (1896), 146 Ind. 287, 45 N.E. 341; Frazier v. Williams, supra; Covey v. Neff (1878), 63 Ind. 391; Hill v. Shannon (1879), 68 Ind. 470; Beatty v. O'Connor (1886), 106 Ind. 81, 5 N.E. 880; Hord v. Bradbury (1901), 156 Ind. 30, 59 N.E. 31; State, ex rel. v. Lung (1907), 168 Ind. 553, 80 N.E. 541; Wells v. Bradley, etc., Co. (1891), 3 Ind.App. 278, 29 N.E. 572; Devenbaugh v. Nifer (1891), 3 Ind.App. 379, 29 N.E. 923; City of Laporte v. Organ (1892), 5 Ind.App. 369, 32 N.E. 342; Ziegler v. Funkhouser (1908), 42 Ind.App. 428, 85 N.E. 984; Indiana, etc., Assn. v. Doherty (1919), 70 Ind.App. 214, 123 N.E. 242; Bernhard v. Idaho, etc., Trust Co. (1912), 21 Idaho 598, 123 P. 481, Ann. Cas. 1913E 120; McNamara v. Henkel (1913), 226 U.S. 520, 33 S.Ct. 146, 57 L.Ed. 330; Collins v. Miller (1920), 252 U.S. 364, 40 S.Ct. 347, 64 L.Ed. 616.

The motion to dismiss the appeal is overruled.

We will dispose of the assignments of error in their numerical order.

(1) The only effect of the special rule made by the trial court at the request of counsel for appellant was to extend the time within which to file an answer or demurrer to the complaint and the effect of the default for failure to comply with that rule was precisely the same as if the default had been taken for a failure to appear in response to the summons. § 410 Burns 1914, § 401 R. S. 1881. Therefore, appellant's right, if any, to present the first assignment of error is no different than it would be if the case were one in which a default had been entered for failure to respond to the...