Daub v. Lundy

• Decision Date: 18 December 1917
• Docket Number: No. 9419.,9419.
• Parties: DAUB et al. v. VAN LUNDY.
• Court: Indiana Appellate Court

67 Ind.App. 468

118 N.E. 140

DAUB et al.

v.VAN LUNDY.

No. 9419.

Appellate Court of Indiana, Division No. 1.

Dec. 18, 1917.

Appeal from Superior Court, St. Joseph County; George Ford, Judge.

Foreclosure suit by Oscar Van Lundy against Mary E. Daub and another. Judgment against defendants by default, motion to set aside the default overruled, and defendants appeal. Affirmed.

Lenn J. Oare and Russell W. Geyer, both of South Bend, for appellants. Miller Guy and C. E. Pattee, both of South Bend, for appellee.

BATMAN, P. J.

Appellee filed his complaint against appellants in the St. Joseph superior court on the 16th day of January, 1915, to foreclose a mortgage on certain real estate. On the same date appellants were duly served with process requiring them to appear thereto on the 29th day of said month. On the 16th day of April, the same being the fifty-first judicial day of the February term, 1915, of said court, they were defaulted, and judgment was rendered against them in favor of appellee. On the 28th day of April, the same being the sixty-first judicial day of said February term, 1915, of said court, appellants filed their verified motion to set aside the default and vacate said judgment, as follows:

“Come now the defendants in the above-entitled cause and move the court to set aside the default and judgment against them for the reasons as follows: That the default and judgment herein was taken against them through their mistake, inadvertence, and excusable neglect, in this, that on the 13th day of April, 1915, the attorneys who had appeared for the defendants in this cause until said date withdrew their appearance, and immediately thereafter Lenn J. Oare and Russell W. Geyer entered their appearance in said cause for the said defendants; that on the day the said Oare and Geyer entered their appearance, to wit, on the 13th day on April, 1915, the attorneys for the plaintiff obtained a rule to answer against these defendants, and then and there the court ordered the rule to be satisfied on the second day thereafter, to wit, on the 15th day of April, 1915; that the said Lenn J. Oare, on the said 15th day of April, began a trial of a cause in the said court, which said trial continued for several days thereafter; that it was the said Lenn J. Oare who was in court at the time said rule to answer was taken and upon whom notice of said order was then and there given; that he, the said Lenn J. Oare, was busy and his time was wholly occupied on the 13th, 14th, and 15th of said month and it was wholly impossible for him to satisfy said rule; that on the 15th day of said month, the day said rule was ordered to be satisfied the said Lenn J. Oare had a conversation with one of the attorneys for the plaintiff and explained to said attorney for the plaintiff that it would be impossible for him to satisfy said rule on said day, but he would satisfy said rule at the earliest possible time, and that then and there the said attorney for the plaintiff made no objection to the explanation and proposal of the said Lenn J. Oare as defendant's attorney; but stated that ‘We will wait and see how your case progresses'; that the said Lenn J. Oare further stated to said counsel for the plaintiff that he would not delay or cause the delay of the said action by failure to plead; that the said Lenn J. Oare had reasons to believe and did believe that it would be satisfactory to the said plaintiff to discharge the rule after the trial in which the said Lenn J. Oare was then engaged was concluded; that at said time of the said conversation with the said counsel for the plaintiff the said Lenn J. Oare intimated to the said counsel the nature of the pleading which he would file in the said cause; that it has not been customary in this court, or any court of record in this county, to take judgment by default by reason of a failure to comply with a rule to answer unless the party against whom the rule is made has been repeatedly notified, or has shown a disposition to delay the trial of the cause by reason of a failure to plead; that notwithstanding said conversation had with the said Lenn J. Oare, and notwithstanding the custom in this court and any other courts of record of this community, the said counsel for the plaintiff on the 16th day of April, moved this court for judgment by default without notifying the defendants or their attorneys of such action; that said judgment was rendered as by default. These defendants would further show the court that they have a valid and meritorious defense to the action set forth in plaintiff's complaint, in this, that the defendants have no interest in the property upon which the mortgage was sought to be foreclosed in said complaint; that the mortgage was given to the plaintiff by one Cyrus Walters who at the time of the execution of the said mortgage was the owner of said property; that the said property was transferred to the defendant Mary E. Daub, and that said transfer to the said Mary E. Daub was a part of a fraudulent transaction, and that the said property in law and in equity never was the property of these defendants, and that these defendantsin law and in equity never had any interest in the property set forth in plaintiff's complaint; that the defendant Mary E Daub has heretofore brought her action in the St. Joseph circuit court to have the said alleged fraudulent transaction set aside, and that before the beginning of the said action to set aside the said fraudulent transaction, the said Mary E. Daub offered and tendered to the said Cyrus Walters a deed quitclaiming all her interest in the said property to the said Cyrus Walters, and then there demanded of him, the said Cyrus Walters, that he return unto the said Mary E. Daub the consideration given by her in the said alleged fraudulent transaction; that it is necessary that the defendants herein make a defense in this action in order to prevent a personal judgement against them, and also in order to properly present the matters with reference to said fraudulent transaction to this court, in order that the right accruing to the said Mary E. Daub, in the action now pending as aforesaid in the St. Joseph...