Baker v. Sihsmann
| Decision Date | 14 August 1974 |
| Docket Number | No. 1--1273A210,1--1273A210 |
| Citation | 161 Ind.App. 260,315 N.E.2d 386 |
| Parties | Dallas BAKER, Defendant-Appellant, v. Bernard SIHSMANN et al., Plaintiffs-Appellees. |
| Court | Indiana Appellate Court |
John T. Sharpnack, Columbus, for defendant-appellant; Sharpnack, Bigley & David, Columbus, of counsel.
Cline, King & Beck, Columbus, for plaintiffs-appellees.
The defendant-appellant Baker, a nonresident motorist, is appealing from a default judgment taken against him by the plaintiff-appellees, the Sihsmanns.
The several issues involve the computation of time for a nonresident motorist served process pursuant to the Indiana Nonresident Motorist Statute, IC 1971, 9--3--2--1 (Burns Code Ed.). Under the facts of the case we reverse and remand.
The facts show Sihsmanns filing suit on May 30, 1973, against Baker for damages arising from an auto accident. The Sihsmanns elected to serve Baker through the Indiana Secretary of State, who received the summons on the 1st of June. The Secretary of State's office mailed it to Baker on the 4th of June. Baker received the summons on the 11th of June. The Sihsmann's defaulted Baker on the 3rd of July and took judgment against him two days later. Baker appeared by counsel on the 20th of July.
The summons sent to Baker was a printed form which, inter alia, stated he had twenty days, beginning the day after receipt, to respond to the complaint. It is that wording which we believe violates 14th Amendment due process as Baker contends.
The adequacy of due process in a substituted service of process situation is described as being:
Milliken v. Meyer (1940), 311 U.S. 457, at 463, 61 S.Ct. 339, at 342, 85 L.Ed. 278.
We acknowledge the propriety of Sihsmann's argument that service by means of the Indiana Nonresident Motorist Statute does not necessarily violate 14th Amendment due process. That position may have prevailed in this appeal had the wording of the summons, for example, advised Baker that time to respond would be computed from the day after service on his agent, the Secretary of State. However, the effect of the summons was to mislead Baker regarding the time to respond to the complaint.
Baker next argues that in addition to the twenty days specified in the summons he is also entitled to an additional three days because the...
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Carter-McMahon v. McMahon
...by three days the time-period during which she could file her motion to correct error. For support, she cites both Baker v. Sihsmann, 161 Ind.App. 260, 315 N.E.2d 386 (1974) and Coleman v. Charles Court, 797 N.E.2d 775 (Ind.Ct.App.2003). In addition, she notes, "Trial Rule 59 does not state......
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Tardy v. Chumrley, 45A05-9503-CV-78
...in the summons addressed to [Tardy], the entry of default against him was premature and should be set aside." Baker v. Sihsmann (1974), 161 Ind.App. 260, 315 N.E.2d 386, 387, reh'g Finally, we address the issue of whether the 60(B) movant must establish a good and meritorious defense to the......
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Mcdillon v. Northern Ind. Public Serv. Co., 45S04-0412-CV-528.
...three (3) days if reliance is placed on the mail to give notice." This language was quoted and applied in Baker v. Sihsmann, 161 Ind.App. 260, 262, 315 N.E.2d 386, 387 (1974), trans. denied, and it was cited in Yaksich v. Gastevich, 440 N.E.2d 1138, 1140 n. 5 (Ind.Ct.App.1982), trans. not I......