Beatty v. McClellan

• Decision Date: 14 October 1949
• Docket Number: 17869.
• Citation: 88 N.E.2d 56,119 Ind.App. 385
• Parties: BEATTY v. McCLELLAN.
• Court: Indiana Appellate Court

88 N.E.2d 56

119 Ind.App. 385

BEATTY v. McCLELLAN.

No. 17869.

Appellate Court of Indiana, in Banc.

October 14, 1949

Clinton H. Given, Indianapolis, Sol H. Esarey Indianapolis, for appellant.

Leonidas A. Guthrie, Muncie, for appellee.

ROYSE, Judge.

This is an appeal from a judgment denying appellant's motion and petition to set aside a default judgment against him in favor of appellee.The pleadings and facts as disclosed by the record may be summarized as follows:

On July 2, 1948 during the April term of the Delaware Circuit Court, the appellee filed his complaint in ejectment against appellant.With the complaint was filed appellee's affidavit for immediate possession.The return day was set as the 19th day of July, 1948.On July 7, 1948appellant gave bond as provided by statute to retain possession of the property pending final judgment.(This was a personal appearance by appellant).Prior to the return day Sol H. Esarey caused his appearance as attorney for appellant to be entered on the docket of said court.On July 28, 1948 the appearance of said Esarey was stricken from the docket on motion of appellee pursuant to Rule 15 of said court, which provides as follows '15.An appearance may be entered by an attorney in an action by noting his appearance on the court docket at any time before the party for whom he appears has been defaulted.And, unless a pleading is filed within three days after such appearance said appearance will be treated as withdrawn and shall be stricken out by the court upon motion.The date when such appearance is entered shall be noted by the attorney on the court' docket.'

The appearance of appellant was not stricken from the files of the court.On said last mentioned date a default judgment was entered against appellant.On the 4th day of August that default judgment was, without notice to appellant, on the motion of appellee, set aside.On the same day another default judgment was taken against appellant.On the 10th day of August, 1948the appellant filed his verified petition and motion to set aside said default judgment.This motion, in addition to the foregoing facts, alleges, in substance, the filing of the appearance of said Esarey, a qualified and practicing attorney who resides in Indianapolis; that appellant lives in Muncie; that neither appellant nor his said attorney had any notice that any action was to be taken in said cause; that neither appellant nor his said attorney had any knowledge of said rules and were surprised thereby that appellant had a good and meritorious defense to said action of appellee in this: that on or about the 14th day of November, 1938the appellee herein brought his action against the appellant and others for ejectment and damages for all of the property involved in this action; that in 1939the court, in that action, found against appellee and rendered judgment in favor of appellant(That case was appealed to this court and the judgment affirmed.McClellan v. Beatty et al.,1944, 115 Ind.App. 173, 53 N.E.2d 1013, 55 N.E.2d 327, transfer denied) that in this action appellee is seeking ejectment of appellant from the second story of said property; that there is now pending in the Jay Circuit Court another action in which appellee herein seeks to eject appellant from the first floor of said property.It is further averred that since the judgment in 1939 there has been no change in the title or ownership of said property and the same is now and has been ever since its rendition in full force and effect.Appellee filed an answer of denial.

The record discloses that after the rendition of the default judgment the sheriff served an execution on appellant and appellant told said sheriff he had a bond filed which would take care of it but the sheriff said that would not do--he wanted a cash bond, whereupon appellant gave the sheriff a check for $630, the amount of the default judgment.The record further discloses that in another action in said court during the April, 1948 term involving the same property wherein appellant here was plaintiff and appelleedefendant, the appellee's attorney entered his appearance for the defendant in that action, and after three days had expired without the filing of any pleading the same court refused to strike the appearance of said defendant's attorney but ordered a rule to answer in seven days.

Section 2-1068 Burns' 1946 Replacement, provides,...