Casto v. Shew

• Decision Date: 24 November 1903
• Docket Number: 4,487
• Citation: Casto v. Shew, 32 Ind. App. 338, 68 N. E. 1041 (Ind. App. 1903)
• Parties: CASTO ET AL. v. SHEW
• Court: Indiana Appellate Court

68 N.E. 1041

32 Ind.App. 338

CASTO ET AL. v. SHEW

No. 4,487

Court of Appeals of Indiana

November 24, 1903

Rehearing denied January 27, 1904.

From Vermillion Circuit Court; A. F. White, Judge.

Action by Lysander Shew against Irene Casto and others.From a judgment for plaintiff, defendants appeal.

Affirmed.

J. T Walker, Hugh Conley and Paul Conley, for appellants.

J. W Amis and D. C. Johnson, for appellee.

OPINION

ROBINSON, J.

Appellee sued appellants and others for damages for breach of a replevin bond.Appellants each filed answer of general denial.There was a trial by the court, and judgment rendered in appellee's favor.Appellants' motion to be relieved from the judgment because of their mistake, inadvertence, surprise, or excusable neglect (§ 399 Burns 1901) was overruled.This ruling presents the only question sought to be reviewed.

The motion is not to set aside a default.It appears by the bill of exceptions that on the day set for trial appellants were present by counsel, who filed an answer, and it does not appear that any objection was made to proceeding with the trial, or any effort made to secure a continuance.

Affidavits were filed in support of the motion, also counter-affidavits by appellee, and an affidavit by one of the appellants in reply.It is unnecessary to set out these affidavits and counter-affidavits.Upon some of the questions they are conflicting.Whether they showed mistake or inadvertence or excusable neglect was a question of fact.And in determining whether the ultimate fact of mistake, inadvertence, or excusable neglect was shown, the trial court not only considered the facts set out in the affidavits, but also the legitimate inferences to be drawn from such facts.Affidavits in such cases partake of the nature of depositions and parol testimony,...