Beatty v. O'Connor
| Decision Date | 26 March 1886 |
| Docket Number | 12,455 |
| Citation | 5 N.E. 880,106 Ind. 81 |
| Parties | Beatty v. O'Connor et al |
| Court | Indiana Supreme Court |
From the Marion Superior Court.
Judgment reversed, with costs, with instructions to the court to sustain the motion to set aside the default and judgment as to appellant.
F. T Hord, W. B. Hord, F. J. Mattler and C. E. Clark, for appellant.
B Harrison, W. H. H. Miller, J. B. Elam and W. F. Heinrichs for appellees.
Appellees commenced an action against appellant and one Henry Auton, as defendants, charging that they were partners, and as such indebted to appellees upon an account. Summonses, returnable on the 15th day of November, 1884, were served upon each of the defendants, and upon one John H. Beatty, whom the complaint charged as being the agent of the defendants. On the 24th day of that month, no answer having been filed, a default was entered against all the parties served, and judgment for $ 242.27 was rendered against appellant and said Auton.
On the 8th day of December, 1884, being at a subsequent term of the court, appellant filed a written motion to have the judgment set aside as to him, as provided by section 396, R. S. 1881. The motion, and the affidavits in support thereof, are entitled as of the original case.
In and by that motion, appellant asked the court "to set aside and open up the judgment in the above entitled cause, and let the defendant in to defend," etc. Upon the filing of the motion and affidavits, the court, as recited in the record, "does now order process for the defendants to appear in this court on December 18th, 1884."
On that day appellees appeared and filed counter-affidavits, and resisted the motion. The motion was overruled. Appellant appealed to the general term, where the judgment at special term was affirmed. From that judgment he has appealed to this court.
It is insisted by appellees, that appellant did not proceed in a manner to entitle himself to any relief, and that hence he has no ground upon which to complain of the result. The contention is, first, that as the application to set aside and open up the judgment was made at a term of the court subsequent to that at which the judgment was rendered, the application should have been by way of a complaint, naming appellant as the plaintiff and appellees as defendants, and stating therein such facts as would have brought to the knowledge of the court the proceedings and judgment from which relief is sought.
Whatever may be the proper and better practice in such cases, it is sufficient here that no such question was made below. Although the proceeding was entitled as of the original cause, notices were issued to appellees treating them as defendants to the motion; they appeared, and the matter was disposed of upon its merits, without any objections as to the form of the proceedings. We, therefore, think that it is too late now to raise any such question, even if it might have been successfully raised below--a question which we do not decide.
It is next insisted by appellees, that the motion did not ask for the setting aside of the default, but only the judgment. We think otherwise. The statute is, that the court "shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusable neglect," etc.
It will be observed that the statute does not, in so many words, say that the court shall relieve a party from a default taken against him, through his mistake, etc. That, however, is clearly implied, because a party could not be admitted to make a complete defence with the default standing against him. The motion is, substantially, in the language of the statute, if, indeed, not in broader language. It is "to set aside and open up the judgment, and let the defendant in to defend."
As we have said, appellant could not be let in to defend, in the sense contemplated by the statute, without setting aside the default. A fair interpretation of the motion is, that he thereby asked for an opportunity to make a full and complete defence, and this necessarily included the setting aside of the default. We think that a motion, substantially in the language of the statute, is sufficient, and will entitle the moving party to all the relief provided by the statute.
It is further contended by appellees, that this court can not consider the case upon the showings for and against the motion to set aside the judgment, for the reason that it does not sufficiently appear that the affidavits copied in the record were all of the affidavits, or all of the evidence heard below.
The affidavits are brought into the record by a bill of exceptions, signed by the judge, the concluding portion of which is as follows: "The foregoing affidavits contain all and the only evidence adduced for and against the said motion to set aside the judgment herein." This contention rests upon the further contention that the word adduced is no broader in its signification than the word offered, and that the latter word, as held in the case of Goodwine v. Crane, 41 Ind. 335, and cases following it, is not sufficiently comprehensive to show that the record contains all of the evidence in the cause.
The case of Rader v. Barr, 7 Ind. 194, and the cases following it, rested upon a rule of this court, which provided that the words, "this was all the evidence given in the cause," were to be regarded as technical, and indispensable to repel the presumption of other evidence. That rule prescribed a convenient and safe formula with which to show that a bill of exceptions contains all of the evidence, but as the rule is no longer in force, those exact words can no longer be regarded as technical and indispensable. In order that this court may pass upon the evidence, the record must affirmatively show that it contains all of the evidence given below. Any statement in the bill of exceptions, that will show that fact, will be sufficient. The word "adduced" is broader in its signification than the word "offered," and looking to the whole statement in relation to the evidence below, we think it sufficiently appears that all of the evidence is in the record.
This brings us to the affidavits in support of and against the motion to set aside the judgment.
That appellant has a good defence to the action, is shown by his affidavit, and the affidavit of John H. Beatty. Appellant, in his affidavit, stated that he was not at any time a partner with Auton, nor had he at any time allowed himself to be held out as such partner, and that he was in no way indebted to the plaintiffs, O'Connor & Co., as a partner with Auton or otherwise.
John H Beatty, in his affidavit, stated that appellant was...
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