Edsall v. Ayres

• Court: Indiana Supreme Court
• Writing for the Court: Davison, J.
• Citation: Edsall v. Ayres, 15 Ind. 286 (Ind. 1860)
• Decision Date: 10 December 1860
• Parties: Edsall and Another v. Ayres and Another

15 Ind. 286

Edsall and Another v. Ayres and Another

Supreme Court of Indiana

December 10, 1860

Petition for Rehearing, Filed January 18, and Overruled May 10, 1861.

APPEAL from the Allen Circuit Court.

The judgment is reversed, with costs. Cause remanded.

M Jenkinson and James Brakenridge, for appellants.

L. C Jacoby, for appellees.

OPINION

Davison, J.

Suit to foreclose a mortgage. The appellees were the plaintiffs and the appellants the defendants. The complaint charges that the defendants, on April 22, 1850, executed to the plaintiffs a mortgage, conveying to them a certain tract of land, therein described, to secure an existing debt and future advances; that on August 20, 1855, an accounting was had between Samuel Edsall and the plaintiffs, in relation to all claims intended to be secured by the mortgage, which resulted in a balance found in their favor of $ 5,875, and for which he executed to them his note, payable at date, with interest, &c. On June 3, 1858, being the thirty-fourth judicial day of the April term of said Court, the cause was called, "when the defendants' attorney objected to the trial thereof, for the reason that the defendants were absent and not ready to go into trial," &c.; but the objection was overruled, and thereupon the issues were submitted to the Court, who found for the plaintiffs $ 5,039, and rendered a decree of foreclosure, &c. After this, on June 4, being the thirty-fifth judicial day of the term, the defendants moved for a new trial, on the ground of surprise, and in support of their motion, filed two affidavits; one, the affidavit of Samue. Edsall, and the other, that of the defendants' attorney, Joseph Brakenridge. These affidavits allege that the defendants were not present when the cause was tried; that on the calling of the docket for trials during the week prior to that in which the present case was tried, the Court was understood to say, that if cases were then passed without being tried, the docket would not be again called for trials, as the Court would only continue in session two days, for the purpose of disposing of unfinished business, and then adjourn; that Brakenridge, defendant's attorney, induced by the statement thus made by the Court, advised Samuel Edsall, one of the defendants, that the case would not be reached for trial at that term, and that it would be unnecessary for him to make preparation, &c.; that this advice was given...