Durre v. Brown
| Decision Date | 09 June 1893 |
| Citation | 34 N.E. 577,7 Ind.App. 127 |
| Parties | DURRE et al. v. BROWN. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Perry county; E. Gough, Judge.
An action on an account was brought by Otto Durre and others against Charles H. Brown and Amelia C. Brown, and a judgment was rendered against defendants by default. On a complaint by Amelia C. Brown the judgment was vacated as to her, and Otto Durre and others appeal. Affirmed.
Wm. Henning, for appellants. Isaac S. Bramel, for appellee.
On the --- day of May, 1891, the Perry circuit court rendered a judgment against one Charles H. Brown and the appellee, Amelia C. Brown, and in favor of the appellants, in the sum of $149.65 and costs of suit. The judgment was rendered on default of both defendants to the action. On the 21st day of July, 1891, and after the close of the term of court at which said judgment was rendered, the appellee filed her complaint against the appellants, to set aside and vacate said judgment, as to herself. In her complaint she alleges, in substance, that the appellants brought an action against her and her husband, Charles H. Brown, on an account; that at the time the summons was read to her she was confined in bed, and unable to sit up, and did not understand the meaning and import of the same, and never knew at the time that she was a defendant in said action, on account of said sickness, and she did not know that judgment was rendered against her for more than two months thereafter; that she does not, nor never did, owe the appellants anything whatever; that she never had any dealings with them, and “never bought one cent's worth of goods from them;” that in her absence, and without her knowledge or consent, and while she was prostrate in bed, and unconscious of any proceedings whatever, and upon her failure to appear, appellants took judgment against her on the --- day of May, 1891, for $149.65. Charles H. Brown, the other judgment defendant, was not made a party to this proceeding. Appellants demurred to this complaint, assigning two causes: (1) That it does not state facts sufficient to constitute a cause of action against them; and (2) that there is a defect of parties defendant, in this: that Charles H. Brown ought to be made a party defendant. The court overruled the demurrer. The appellants filed an answer of general denial. The cause was submitted to the court, and resulted in a finding and judgment for appellee. A motion for a new trial was overruled. The errors assigned are the overruling of the demurrer, and the motion for a new trial.
Where a judgment is regular on its face, it cannot be set aside for any purpose except to let in a defense to the merits. The complaint, for such purpose, should show the nature and character of the original action, in which the judgment was rendered, and also a pertinent, specific, and good defense thereto, and the facts constituting the defense must be shown. Frost v. Dodge, 15 Ind. 139;Lee v. Busey, 85 Ind. 543;Slagle v. Bodmer, 75 Ind. 330;Nichols v. Nichols, 96 Ind. 433. It is contended that the complaint does not comply with these rules. The nature of the first action is alleged to be an account, but the character of the account is not given. The word “account” has no clearly-defined legal meaning, but the primary idea conveyed by the term is some matter of debit and credit, or of a demand in the nature of debit and credit, between parties, arising out of contract, or some duty imposed by law, or of a fiduciary relation. Its Latin derivatives, “ad, con, putare,” signify to reckon together. It is none the less an account that the charges are by one person against the other, instead of being mutual demands of debit and credit. Nelson v. Board, 105 Ind. 287, 4 N. E. Rep. 703; And. Law Dict. The word “account,” as used in this pleading, conveys the idea that the appellee was indebted to appellants but the character of the indebtedness is not disclosed, unless the other allegation, that she “never bought one cent's worth of goods from them,” makes known the nature of the indebtedness. We think it may be fairly inferred from the two averments that the indebtedness was an account of goods sold and delivered.
It is also contended that no specific defense is set out in the complaint. A defense is that which is offered by a defendant as sufficient to defeat the complaint, by denying, justifying, or confessing and avoiding it. Brower v. Nellis, 33 N. E. Rep. 672, (decided at this term of this court.) The allegation here is that appellee never had any dealings with appellants, never bought any goods from them, and does not, and never did, owe them anything whatever. We think this equivalent to the defense by general denial. The general denial is not required to be specific in setting out the facts that will defeat a recovery.
It is further contended that the omission to fill the blank showing the day of the month on which the judgment was rendered makes the complaint bad. In the case of Overton v. Rogers, 99 Ind. 595, which was an action to review a judgment, it was said: The averments here are more specific than in the case from which the quotation is made. There nothing but the year was given. Here the month is given, and when the month is known the court will take judicial knowledge of the term of the court at which the judgment was rendered. The pleading is very carelessly drawn, and it is with some hesitation that we have reached the conclusion that it is sufficient to withstand the demurrer for want of facts.
The other cause of demurrer presents a more serious question. Under section 396 Rev....
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