Duncan v. Binford
| Decision Date | 22 February 1972 |
| Docket Number | No. 271A33,271A33 |
| Citation | 151 Ind.App. 199,278 N.E.2d 591 |
| Parties | Ward L. DUNCAN, Appellant, v. Marcia Lou BINFORD, Appellee. |
| Court | Indiana Appellate Court |
Virginia Dill McCarty, Richard M. Orr, Indianapolis, for appellant.
Stephen A. Free, Greenfield, Howard J. DeTrude, Jr. and John T. Lorenz, Indianapolis, for appellee; Ging, Free & Brand, Greenfield, Kightlinger, Young, Gray & Hudson, Indianapolis, of counsel.
The primary issue raised by this appeal is whether it was an abuse of discretion for the trial court to refuse to set aside a default judgment entered against the purported father in a paternity action.
The facts relevant to the issues presented on appeal may be summarized as follows:
On February 6, 1970, plaintiff-appellee (the mother) filed a petition to establish paternity against defendant-appellant (the purported father).
Summons issued from the Clerk of the Superior Court of Hancock County. Such summons was served and the following return was made by the Sheriff of Hancock County:
'RETURN ON SERVICE OF SUMMONS
'I hereby certify that I have served the within summons:
'(1) By delivering a copy of the summons and a copy of the complaint to the defendant on the 11 day of Feb. 1970
'(2) By leaving a copy of the summons and a copy of the complaint at Ward L. Duncan, the dwelling place or usual place of /s/ office (abode crossed out) of the said defendant, with a person of suitable age and discretion residing therein namely _ _ and by mailing a copy of the summons without the complaint to Ward L. Duncan at 104 McClellan Rd., Gfield, the last known address of defendant(s).
'Sheriff Fee: 6.00
'Additional Comp.
'Date Served: 2--11--70.
/s/ Robert Sebastian
/s/ By Tyner C. Shelby' Thereafter, alias summons issued and was served by certified mail. A receipt card purporting to show delivery is contained in the record.
On May 4, 1970, the trial court entered the following order:
On May 22, 1970, the defendant not appearing in person or by counsel, the trial court heard the evidence and entered its finding, judgment and order, a summary of which follows:
That defendant-Duncan is the natural father of the child born to plaintiff-Binford; that plaintiff recover from defendant expenses incidental to her pregnancy in the amount of $1,252.35; that defendant pay $25 per week for the support of such child commencing May 20, 1970; and that defendant pay plaintiff's attorneys' fees in the amount of $500.
On June 23, 1970, plaintiff filed her petion for contempt of court citation alleging that the ordered amounts were unpaid and praying the trial court hold the purported father in contempt of court. Notice of a contempt of court hearing to be held on July 10, 1970, was sent to the defendant by certified mail. Defendant-Duncan, not appearing at this hearing, was found in contempt of court and the trial court ordered a writ of attachment for the person of the defendant to be issued.
On July 21, 1970, Duncan appeared in person and by counsel and filed his motion to set aside the default judgment. The purported father was then ordered by the trial court to post in the office of the Hancock County Clerk the sum of '$2,000 to be held in escrow to cover the adjudication of contempt.' Defendant-Duncan then filed his supplemental motion to set aside the default judgment and the matter was set for hearing on August 3, 1970.
The following order was entered on August 3, 1970:
The defendant then filed his 'Motion to Relieve Defendant From and To Set Aside Order' of August 3, 1970. Subsequently, the trial court stayed the execution of said order on the condition that he post a $5,000 bond. Such was filed and execution of the order stayed.
After the mother filed her 'Motion for Order to Clerk Releasing Funds', defendant filed his motion to correct errors and brief in support thereof. Such motion was overruled by the trial court and defendant-appellant has duly and timely brought this appeal.
A default judgment may be set aside under the provisions of Rule TR. 55(C), Indiana Rules of Procedure, which provides:
Rule TR. 60(B)(1), Indiana Rules of Procedure, states:
'(1) mistake, surprise, or excusable neglect;'
The Appellate Court of Indiana in Swartz v. Swartz (1951), 121 Ind.App. 635, at 643--644, 101 N.E.2d 822, at 825, stated:
'The law regarding the setting aside of default judgments, taken as a result of the mistake, inadvertence, surprise or excusable neglect of the defendant, is ably stated in the following cases:
'In the case of Hoag v. Jeffers, 1928, 201 Ind. 249, 252, 253, 159 N.E. 753, 754, the court said:
'Under the statute now in force (section 423, Burns' 1926), as under former statutes somewhat similar in effect (section 396, R.S.1881), to obtain relief from a judgment taken against a party by virtue of the action granted him by this statute, two things must concur: (1) The judgment taken against the judgment defendant through his mistake, inadvertence, surprise, or excusable neglect; and (2) his showing by his complaint that he has a meritorious defense to the cause of action upon which the judgment against him was founded. (Citing authorities.)
'In the case of Carty v. Toro, 1944, 223 Ind. 1, 4, 57 N.E.2d 434, 435, the court stated:
See also:
Strickland v. O'Rear (1961), 134 Ind.App. 247, 249, 176 N.E.2d 902, 903 (transfer denied).
In the instant case the first contention raised by appellant-Duncan is that the trial court's refusal to set aside the default judgment was an abuse of discretion because it was 'contrary to * * * the undisputed evidence.'
Appellant's assertion under this contention may be grouped in the following manner:
1. That he has shown mistake, surprise and excusable neglect because the uncontradicted evidence shows
'(a) Defendant was not served with summons in said action and defendant was without knowledge of the action and judgment proceedings prior to his receipt of notice of contempt of court proceedings, and
'(b) Defendant was so distraught, under emotional stress and impairment at the time the action was commenced and alias summons issued that he was unable to and did not exercise his ordinary judgment so as to retain counsel and present available defenses to the action;' and
2. That he has a meritorious defense to the paternity action because he had had a vasectomy making it 'impossible for him to be the father of any child.'
The first contention which we will consider is whether appellant's assertion that he was not served with summons shows excusable neglect or mistake.
Where a default has been taken against a person who has not been served with process and who thus has no notice of the institution of the action against him, such person is entitled to have the judgment set aside. Ward v. Ward (1947), 117 Ind.App. 225, 229, 71 N.E.2d 131; Dobbins v. McNamara (1888), 113 Ind. 54, 14 N.E. 887.
Where service of summons is shown by sheriff's return, such return is conclusive to give the court jurisdiction over the defendant, yet the defendant is not estopped from showing that summons was not in fact served on him and, hence, had no knowledge of the action. Knowlton v. Smith (1904), 163 Ind. 294, 71 N.E. 895; Nietert v. Trentman et al. (1885), 104 Ind. 390, 4 N.E. 306.
The record before us contains the following evidence:
On February 6, 1970, summons was issued to the Sheriff of Hancock County for service. The sheriff's return of summons shows that one copy of the summons and one copy of the complaint was left at the office of Ward L. Duncan, and that one copy of the summons without the complaint was mailed to Ward L. Duncan at 104 McClellan Road, Greenfield, Indiana, the last known address of the defendant.
On March 20, 1970, an alias summons and copy of the complaint was sent by certified mail to Ward L. Duncan at 12 Masonic Building, Greenfield, Indiana, 46140. The receipt card showing delivery on March 21, 1970, is contained in the record and bears a scrawled signature purporting to be that of appellant.
Appellant testified that he did not...
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