Cantwell v. Cantwell

• Decision Date: 17 June 1957
• Docket Number: No. 29305,29305
• Citation: 237 Ind. 168,143 N.E.2d 275
• Parties: Frank E. CANTWELL, Appellant, v. Clotilda Allen CANTWELL, Appellee.
• Court: Indiana Supreme Court

Page 275

143 N.E.2d 275

237 Ind. 168

Frank E. CANTWELL, Appellant, v. Clotilda Allen CANTWELL, Appellee.

No. 29305.

Supreme Court of Indiana.

June 17, 1957.

Rehearing Denied Sept. 17, 1957.

Friedrich, Petrie & Tweedle, Edwin H. Friedrich, Bernard A. Petrie, Stanley A. Tweedle, Hammond, for appellant.

Tinkham, Beckman & Kelly, Daniel F. Kelly, John F. Beckman, Jr., Hammond, Alfred J. Link, LaPorte, or counsel, for appellee.

LANDIS, Judge.

Appellee brought suit and obtained a default judgment against appellant for a divorce, for alimony, attorney's fees, and custody of minor children of the parties.

Approximately twenty days after the default judgment was rendered, appellant entered a special appearance and filed verified motion to set aside the default judgment to which appellee filed answer. After a hearing upon the matter, the lower court overruled appellant's motion to set aside judgment. No question has been raised as to the form of the judgment appealed from in this case. ¹

Appellant has made numerous contentions on this appeal based upon the various specifications of his motion to set aside judgment, the principal ones being as follows: The trial court had no jurisdiction over his person, as no personal service of summons was had upon him at his alleged last and usual place of residence in Indiana. The due process clause of the Fourteenth Amendment of the Federal Constitution, and the due course of law clause of the Indiana Constitution (Article 1, § 12) have been violated by the default decree entered against him by the trial court and the denial of his motion to set the judgment aside.

At the hearing on the motion to set aside judgment the following facts appeared: Appellee's suit for divorce against appellant was filed on June 4, 1953, and summons was served by leaving copy at the last and usual place of residence of appellant at Michigan City in La Porte County, Indiana. Appellant and appellee had previously lived at such residence as husband and wife, and appellee wife had, on January 27, 1953, temporarily separated from her husband and gone to stay with her parents in Chicago. Appellant husband on June 2, 1953, (two days before suit was filed and summons served), left the family home in Michigan City, La Porte County, Indiana, with the two boys of appellant and appellee, and motored to California. Appellant had packed his furniture and belongings the day before he left, and most of such items were, by appellant's direction, transported to California by truck. Appellee wife attempted to visit the house on June 3, the day following his departure, to pikc up the two boys as per an agreement between the parties relating to a divided custody arrangment, but was unable to gain admittance as appellant had already left for California with the boys without her knowledge. Appellee wife then consulted with her attorney, and on June 4 filed a divorce action against appellant in La Porte County, Indiana, and on the same date a summons was purportedly served on appellant husband by leaving copy at his alleged last and usual place of residence in Michigan City, La Porte County, Indiana.

When the summons was allegedly served by the sheriff at appellant's last and usual place of residence on June 4, he could find no one at the residence, and he left the summons under the door on the screened-inporch. Appellee first actually entered the house, after appellant's departure, on June 7, and she found drapes at the windows and some personal effects and belongings of appellant in the house, including an overcoat, bathrobe, shirt, and some of his shoes. The furniture from upstairs was gone but there was some remaining in the basement. It also appeared that appellant was still the owner in his individual name of the residence estimated to be of the value of $35,000.

It further appeared that appellant shortly before leaving, stated to a neighbor: 'It's no use. Since [my wife] is suing for divorce, I am going to California.' (Tr. p. 216, lines 19 and 20.) He thereupon left by automobile for California, arriving there on June 21, 1953, which was 17 days after the service of process. It was not disputed that appellant had actual notice of the filing of the divorce action at least by July 25, 1953, and ten days thereafter on August 4, 1953, appellee, in default of appellant's appearance, was granted a divorce, alimony, attorney's fees and custody of the children of the marriage. Thereafter, on August 25, 1953, appellant entered special appearance and filed verified motion to set aside the default judgment to which appellee filed answer in reply.

It further appears from the record that after the divorce was granted appellee pursued appellant to California, and in court proceedings was awarded custody of the children by a California court; but, nevertheless, appellant, after such court hearing, again departed with the children for parts unknown. Appellant's present whereabouts are still unknown to his own attorneys of record, who state they have had no direct contact with him, but have only been in communication with him through an intermediary.

We believe the foregoing facts and the reasonable inference therefrom were strongly persuasive that appellant remained a resident of La Porte County, Indiana, at the time of the service of process upon him, ² but before it is necessary to consider such matter, we should determine whether appellant properly presented the question to the lower court so that the court's overruling of the same was error.

Appellee has contended that for numerous reasons it would be improper or inequitable in the case at bar to allow appellant to vacate the judgment in question. From an examination of appellant's motion to set aside judgment, it is apparent that no where in such motion is there an allegation that appellant has a good and meritorious defense to the cause of action upon which the judgment was based and which he seeks here to set aside. What is the materiality of this omission?

Appellant, in the case before us has not predicated his motion to set aside default upon the statutory remedy prescribing relief for default judgments taken through mistake, surprise or excusable neglect. ³ He concedes he has been appealing to the inherent and discretionary powers of the trial court to set aside a judgment which he alleges was taken against him without proper notice. Appellant has established no common law or statutory basis for relief, and his right to set aside the judgment must rest, if it is to prevail, upon equitable principles.

We recognize the unquestioned general weight of authority that a judgment-defendant who seeks to vacate a judgment on account of want of service of process, the record not showing any appearance to the action, must allege and prove that he has a meritorious defense to the cause of action on which the judgment was rendered. As stated in Freeman on Judgments, 5th Ed., Vol. 3, § 1189, at pp. 2468 and 2469:

'* * * a preponderance of the decisions upon this subject declares that, notwithstanding an alleged want of service of process, a court of equity will not interfere to set aside a judgment until it appears that the 'result will be other or different from that already reached,' or, in other words, that there was a defense to the action, either entire or partial. The extraordinary powers of equity will not be used to take away the legal advantage acquired under such circumstances in the enforcement of a just debt, in favor of one who does not deny that he owes the debt but merely seeks the right to defendant against a claim to which he has no defense.' See: Mayer v. Wilson, 1906, 166 Ind. 651, 656, 76 N.E. 748; Williams v. Hitzie, 1882, 83 Ind. 303, 308, 309; Woods v. Brown, 1884, 93 Ind. 164, 168, 47 Am.Rep. 369; Schilling v. Quinn, 1912, 178 Ind. 443, 447, 99 N.E. 740; Fletcher v. Barton, 1915, 58 Ind.App. 233, 236, 108 N.E. 137; Garrison v. Miller 1916, 62 Ind. App. 485, 487, 488, 112 N.E. 22; 23 Cyc. 962.

For cases from other jurisdictions see Note 4. ⁴

High on Injunctions (4th Ed.), Vol. 1, § 229a, p. 224, states the rule as follows:

'The more recent decisions * * * have set the question at rest, and it may now be stated as rule, supported by the great weight of authority, that, even though the judgment be entirely void for want of proper service of process, relief will not be granted unless the complainant can show that he has a valid defense to the claim upon which the judgment was founded. The rule as thus announced is not only supported by the decided weight of authority but seems more in accord with the fundamental principles which govern courts of equity in granting equitable relief against the enforcement of judgments.'

Black on Judgments, Vol. 1, (2d Ed.), § 376, p. 596 states:

'It is generally held that where a judgment at law is void for want of jurisdiction, no summons or notice having been served on the defendant, nor opportunity given him for defense, nor any appearance entered by or for him, equity will relieve against the judgment, if it be shown that there is a meritorious defense to the action.'

See also:

Pomeroy's Equity Jurisprudence, (5th Ed.), § 393c, p. 83, as follows:

'On this fundamental principle of equity also, it is said, is based the rule that a meritorious defense must be shown if a party comes into a court of equity and seeks to set aside or enjoin a judgment regular on its face.'

And § 1364, p. 985, as follows:

'In general, the party seeking the aid of equity to enjoin a judgment at law against him must not only show some ground for interference, within the doctrine of the text, but must also show that he has a good and sufficient defense to the cause of action, so that on a re-examination and retrial the result would be different.'

See also: American Annotated Cases, 1913 E, p. 124 as follows:

'It is a well-settled rule that where a judgment is regular on its face, one who moves to set it aside or enjoin its...