Carty v. Toro
| Decision Date | 10 November 1944 |
| Docket Number | 28038. |
| Citation | 57 N.E.2d 434,223 Ind. 1 |
| Parties | CARTY v. TORO. |
| Court | Indiana Supreme Court |
Appeal from Parke Circuit Court; Howard L. Hancock Judge.
Owen S. Boling, of Indianapolis, and E. E. Neel, of Newport, for appellant.
C G. Powell, of Montezuma, and J. M. Johns, of Rockville, for appellee.
This is a controversy over a strip of ground three and one-fourth feet wide in Montezuma. The question before us is whether the trial court abused its discretion in refusing to set aside a default judgment against appellant for possession and $50 damages. He contends that he has shown 'excusable neglect' within the meaning of § 2-1068, Burns' Supp., § 173, Baldwin's 1941 Supp. The evidence consisted of his affidavit and appellee's counter-affidavit. Whether appellant has a meritorious defense which he may present if the default be set aside, a question we need not decide, received more attention in the affidavits than did his excuse for failing to appear in answer to the summons. There is no denial of any of the following facts:
The action was filed August 29, 1942 and summons, returnable September 14, 1942, was served by reading to appellant August 31, 1942. Appellant asserts that one Ross, living in Indianapolis, owns the fee of the real estate in question. Appellant's interest therein is under a contract to purchase from Ross. Appellant took the summons to Ross and told him of the suit. Ross 'laughed about it and said 'Well, you just forget it and I will take care of it when they notify me.'' Evidently not satisfied with this assurance, although he says he relied upon it, appellant on September 5, 1942, 'consulted an attorney in Terre Haute, Indiana, and handed him a copy of the original complaint, and * * * was advised by said attorney that it was the duty of the owner of the fee simple, Mr. Wilbur Ross, to defend the suit and protect the title to the real estate, and that the suit was no business of the defendant, William E. Carty, and advised him to ignore it * * *.' September 12, 1942, appellant wrote Ross a letter saying, * * *.' Ross did not reply. A year passed and on the 23d day of September, 1943, there being no appearance, appellee took the default judgment. The sheriff, attempting to execute the same, was met by appellant with a threat of shooting if any attempt were made to tear down the fence blocking entrance to the ground. Appellant was then cited for contempt and took the notice thereof to Ross who said, "Well, I have never been served with any notice and if I have been sued, I do not know it, and there is nothing for me to defend, but you will have to appear in court on October 14th and answer the charge of contempt." Appellant asserts this was the first knowledge he had that Ross 'had failed and neglected to take any action in the defense of Carty's contract and right to possession.' Thereafter on October 14, 1943, appellant filed his petition to set aside the judgment.
As indicated in the beginning the trial court in ruling upon the petition was required to exercise a sound judicial discretion. 31 Am.Jur., Judgments, § 717; United States Fidelity, etc., Co. v. Poetker, 1913, 180 Ind. 255, 268, 102 N.E. 372, 376, L.R.A.1917B, 984. Its decision will be set aside only for an abuse of such discretion. With this rule in mind the facts alleged must be analyzed.
Obviously appellee was in nowise responsible for appellant's predicament. For over a year after the return day the case was pending without action. In that time appellant made no effort to ascertain its status or his rights and obligations other than as above set forth.
He claims to have been misled by two persons, the owner of the fee, from whom he had a contract of purchase, and the lawyer whom he consulted in Terre Haute. We do not find in the reported conversations with Ross any assurance reasonably justifying appellant's ignoring the process of the court. Ross did not merely say 'Forget about it and I will take care of it' but he added the qualification 'when they notify me' which was a clear indication that he did not intend to do anything about defending the action unless he himself were summoned. The letter to Ross which followed the conversation by appellant with the attorney contained a request that Ross take care of the litigation but Ross did not reply. This request was not followed up. The most that we can see in it is a bit of wishful thinking on the part of appellant. Nothing Ross said or did can excuse appellant's neglect.
A competent attorney, fully informed as to the facts, would not have advised appellant to ignore the summons. Perhaps the trial judge had some doubts as to the accuracy of appellant's report of his conference at Terre Haute. He says he 'consulted' the attorney and handed him a copy of the complaint. It was the usual complaint in ejectment demanding possession and damages against appellant for wrongful detention. On its face it called for a defense. Only extraneous facts would justify other advice. We may assume that some inquiry as to the facts was made of appellant but what he told the attorney is not disclosed. The attorney's affidavit or testimony might have explained his unusual advice. But he was not called by appellant upon whom was the burden. From this failure the court may have drawn the inference that the attorney would not corroborate his erstwhile...
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