Ferrara v. Genduso

• Decision Date: 28 April 1938
• Docket Number: 27007.
• Citation: 14 N.E.2d 580,214 Ind. 99
• Parties: FERRARA et al. v. GENDUSO et al.
• Court: Indiana Supreme Court

14 N.E.2d 580

214 Ind. 99

FERRARA et al. v. GENDUSO et al.

No. 27007.

Supreme Court of Indiana

April 28, 1938

Appeal from Superior Court, Lake County; B. C Jenkins, Special judge.

McGuire Alexander & Graves, of Gary, and John D. Kennedy, of East Chicago, for appellants.

E J. Fletcher and E. J. Wiltrout, both of Gary, for appellees.

FANSLER Judge.

Appellants brought this action to vacate a judgment which they allege to have been taken because of their mistake, surprise, inadvertence, and excusable neglect. A demurrer to the complaint was sustained, and the ruling is assigned as error.

The complaint alleges that the appellants were the owners of certain property which was mortgaged to the appellee Tony Genduso to secure a loan; that, when the indebtedness became due, the appellants offered to deed the property to the appellee, who is the brother of the appellant Josephine Ferrara, but that the appellee then suggested, and agreed with appellants, that, if they would make certain repairs on said building, he would refrain from foreclosing his mortgage and permit them to procure a federal loan upon the premises with which to pay the indebtedness to him; that they then agreed to make the repairs, and expended approximately $3,700 in repairing the premises, in paying taxes, and procuring insurance thereon; and that, when the repairs were completed and before they could effect a loan, the appellee fraudulently violated his agreement and brought an action to foreclose his mortgage; that the representations were made by the appellee to his sister, the appellant Josephine Ferrara, for the fraudulent purpose of deceiving them and procuring them to expend large sums of money on the premises; that, because of the action to foreclose appellee's mortgage, they were unable to procure the loan contemplated by their agreement with appellee; that, when advised of the action to foreclose the mortgage, they employed attorneys, who were authorized to appear for them, and consulted with said attorneys about their defense, and advised their attorneys about the oral agreement with the appellee, and requested their attorneys to make a defense to said action upon the basis of the oral agreement; that they believed their attorneys had set up a defense to the action based upon the oral agreement, and relied upon their attorneys so to do; that they did not know the cause was set for trial, nor that their attorneys had failed to file an answer except in general denial; that, in fact, their attorneys did not appear in court on the day said cause was assigned for trial; and that their attorneys agreed with the plaintiff's counsel that judgment should be entered in favor of the appellee, all without their knowledge and consent; 'that the plaintiffs are laymen,...