Christ v. Jovanoff
| Decision Date | 12 March 1926 |
| Docket Number | No. 12617.,12617. |
| Parties | CHRIST v. JOVANOFF et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Porter County.
Suit by Mike Christ against Nicholas Jovanoff and others. Judgment for defendants, and plaintiff appeals. Reversed, with directions.Sheehan & Lyddick, of Gary, for appellant.
Kliott & Hurley, of Gary, for appellee.
Appellee recovered judgment by default against appellant in the Lake superior court No. 3, sitting at Gary, October 19, 1920, for $6,602. On May 2, 1921, appellant filed his complaint in the same court for relief from this judgment on the ground of excusable neglect and want of jurisdiction of the court to render the particular judgment. On motion of appellee the venue was changed to the Porter superior court November 23, 1921, and the transcript was filed with the clerk of the latter court February 16, 1922. The first action taken in the Porter superior court was on May 25, 1922, when appellant appeared and filed a motion to remand the cause to the Lake superior court on the ground that the jurisdiction was in the court where the original judgment had been rendered. This motion was overruled, and the court after trial rendered a judgment denying appellant any relief. Appellant's motion for a new trial being overruled, this appeal was perfected in this court November 27, 1922, and transferred to the Supreme Court March 30, 1923, for want of jurisdiction, and on January 27, 1926, was by the Supreme Court transferred to this court under Acts 1925, c. 201. p. 487.
Appellant's complaint alleged: That on May 1, 1920, appellee filed a complaint in the Lake superior court No. 3 against appellant to dissolve a partnership between the parties and for an accounting and final settlement of their partnership affairs. That appellant employed Dimitur Economoff, a practicing attorney at Gary, to look after his interest in cause. That Economoff entered an appearance for appellant June 21, 1920. That he relied on this attorney to look after the action, to make his defense thereto, and to notify appellant when the case would be called for trial. That on October 29, 1920, through appellant's mistake, inadvertence, and excusable neglect, appellee obtained a judgment by default therein against appellant for $6,602 upon an account. That appellant was not present when such judgment was taken, and knew nothing about said judgment being rendered until December 13, 1920, when the sheriff informed him regarding the matter. That he immediately went to the office of Economoff, and, being informed he had left Gary he went to the office of his present attorneys, Sheehan & Lyddick, for information. That on the next day these attorneys informed him that a judgment had been rendered October 29. That this was the first information he had that he had been defaulted. That he then employed Sheehan & Lyddick, and learned that Economoff had been making arrangements to leave Gary and locate elsewhere, and had failed to file answer in said cause. That he at all times believed and thought his attorney had filed the necessary pleadings. That the court was not authorized under the complaint then on file to render the judgment that was rendered, there being no pleading on which to base the same. That the judgment was rendered against appellant after he had appeared, without striking out his appearance and without any order against him to file answer. That appellant has a good and meritorious defense to the action, which defense is set out in detail, and which, if true, shows appellant was not indebted to appellee in any sum whatever.
Without filing an answer to this complaint, appellee, on November 19, 1921, filed a motion for a change of venue from the county. This motion purported to be supported by the affidavit of one of the attorneys then representing appellee. Neither the motion nor affidavit for the change of venue, as set out in the record, was signed or sworn to by any one. On November 23, 1921, the court sustained this motion and directed that the venue be perfected instanter. The record does not show the presence of appellant at the time when the alleged affidavit for the change of venue was filed or when the motion was sustained. Appellant contends that the Porter superior court erred in overruling his motion to transfer and certify the cause back to the Lake superior court; also in refusing to permit him to introduce in evidence the complaint in the action wherein the judgment was rendered.
[1] Section 405, Burns' 1914 (section 396, R. S. 1881), which was in force when this complaint was filed, among other things provides that:
The court “shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any proceedings, on complaint or motion filed within two years.”
The court referred to in the above section undoubtedly is the court in which the proceedingwas pending or in which the judgment had been rendered. The motion or complaint must of course be filed in that same court. Lowry v. Indianapolis Traction, etc., Co., 126 N. E. 223, 77 Ind. App. 138.
[2][3] The complaint in the instant case was filed in the proper court, and it is appellant's contention that no change of venue should have been granted, and that the Porter superior court erred in overruling his motion to remand and certify the cause back to the Lake superior court.
Our attention has been called to Foster, Adm'r, v. Porter, 24 Ind. 363;Center Township v. Board of Com'rs, 10 N. E. 291, 110 Ind. 579;Daniels v. Bruce, 95 N. E. 569, 176 Ind. 151; and Western Union, etc., Co. v. Taylor, 104 N. E. 771, 57 Ind. App. 93. These cases are easily distinguished from the instant case, and in our judgment none of them are of controlling influence.
In Foster, Adm'r, v. Porter, supra, appellant's decedent recovered a judgment in the Fountain circuit court against the appellees upon default. Later the appellees filed a complaint in the Fountain circuit court to review the judgment. An answer was filed, after which the court which rendered the judgment set aside the default and let the defendants in to plead to the complaint. An answer was then filed to the complaint in the original cause and a change of venue taken to the Tippecanoe circuit court. The latter court on motion struck out the answer which had been filed in the original cause and vacated the order setting aside the original judgment. An amended complaint “for review” in the language of the statute was then filed, to which a demurrer was filed and overruled, and, upon a refusal to answer, the court reversed and set aside the original judgment. A demurrer was then filed to the complaint in the original cause, upon which the judgment had been rendered. This demurrer was sustained and final judgment rendered thereon. The appellant contended that the Tippecanoe circuit court erred in giving leave to amend the complaint for review. Appellee by cross–error questioned the action of the Tippecanoe circuit court in setting aside the order of the Fountain circuit court vacating the original judgment. After holding that the action of the Fountain circuit court in vacating the original judgment, on motion, while an issue of fact was pending upon the complaint for review, was irregular, it was also held that the Tippecanoe circuit court had the power to set aside and vacate the irregular order of the Fountain circuit court vacating the original judgment on motion. Appellant contended that the proceeding brought to the Tippecanoe circuit court was an application for relief under section 119 of the Code, and that the amendment introduced new matter making it an action for review, which, under section 586 of the Code (2 G. & H. 279), had to be commenced in the court where the original judgment was rendered, and that it would not be planted in the Tippecanoe circuit court. The court, however, held that the complaint filed in the Fountain circuit court was a complaint for review. No question as to the right to a change of venue in an action to review was involved, and nothing was said on that subject. The court, however, in referring to an application for relief under section 99 of the Code, 2 G. & H. 118, which is similar to section 405, supra, said:
On the former appeal, in Center Township v. Board of Commissioners, supra, the judgment was reversed, with directions to the court to restate its conclusions of law and to render judgment. On the return of the cause to the trial court, and before the court had restated its conclusions of law and rendered judgment, Center township filed a motion in arrest of judgment and for the correction of the special finding. This motion was overruled, the court restated its conclusions of law, and rendered a judgment against the board of commissioners of Marion county. Center township excepted to the judgment, and also to all of the judgment in excess of a certain sum. Judgment was rendered against the township for costs. It then filed its verified motion to be relieved from such judgment. Affidavits were filed in opposition to this motion, whereupon the railroad in whose favor the judgment had been rendered filed an affidavit for change of judge and for change of venue. The court announced that if there were no objections it would...
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