Heck v. Wayman

• Decision Date: 17 February 1932
• Docket Number: No. 14149.,14149.
• Citation: 179 N.E. 785,94 Ind.App. 74
• Parties: HECK et al. v. WAYMAN.
• Court: Indiana Appellate Court

94 Ind.App. 74

179 N.E. 785

HECK et al.

v.WAYMAN.

No. 14149.

Appellate Court of Indiana, in Banc.

Feb. 17, 1932.

Appeal from Warrick Circuit Court; Union W. Youngblood, Judge.

Action by Eugene R. Wayman against Walter E. Heck and another. After judgment by default against them, proceedings were taken by defendants to set aside the default. From a judgment refusing to vacate the default judgment, defendants appeal.

Affirmed.

Philip Lutz, Jr., and Caleb J. Lindsey, both of Boonville, for appellants.

Funkhouser & Funkhouser, of Evansville, and Ora A. Davis, of Boonville, for appellee.

NEAL, J.

Eugene R. Wayman, plaintiff below, filed his complaint in two paragraphs in the Warrick circuit court against Walter E. Heck and Pearl A. Heck, defendants below, asking that his title to 270 acres of land in Warrick county be quieted as against them. Appellants, defendants below, were ruled to answer, and, upon their failure to comply with the rule to answer, judgment quieting title was rendered and entered in favor of plaintiff. Thereafter, at the same term of court, the default judgment was rendered and entered, and defendants, under the original case to quiet title, filed a pleading denominated by them “affidavit and motion to set aside a default.” Plaintiff appeared, affidavits were filed both by the plaintiff and defendant, evidence was heard, and the trial court refused to vacate and set aside the judgment. The order book entry reads in part as follows: “Comes now the plaintiff by his attorneys *** and come the defendants by their attorneys *** and the court having had under advisement the defendants' motion to set aside the default and judgment rendered and entered and being now duly advised overrules said motion of the defendants to set aside said default and judgment to which ruling of court each of said defendants separately and severally excepts. It is therefore ordered, adjudged and decreed by the court that the default and judgment hereinbefore entered be not set aside and that the defendants take nothing on their motion to set aside said judgment and default. And the defendants now each pray an appeal to the Appellate Court of Indiana, and ask 90 days in which to prepare and file Bill of Exceptions and 90 days time is given defendants to prepare and file their bill of exceptions.”

Appellants have assigned many errors, many of which are waived. We mention the following assigned errors which, in our judgment, are sufficient to present the several propositions of law which are hereinafter mentioned and discussed in this opinion: (a) “The second paragraph of plaintiff's complaint herein does not state facts sufficient to constitute a cause of action.” (b) The court erred in refusing to set aside the default judgment rendered by it in said cause. (c) The court erred in refusing to extend the time for the filing of the bill of exceptions containing the evidence. (d) The court erred in overruling the appellants' motion for a new trial. We will proceed to consider each of the errors as assigned in their reverse order.

[1] No error is available to appellants in overruling their motion for a new trial, which errors are addressed to the default judgment, when the causes therein stated are (1) that the decision of the court is not sustained by sufficient evidence; (2) that the decision is contrary to law. In the case of Ervin School Township v. Tapp (1890) 121 Ind. 463, 23 N. E. 505, 506, the Supreme Court, by Mitchell, J., said: “The question here is what remedies are open to a defendant who, after having been duly summoned, fails to appear, and against whom a final judgment has been taken by default. That he cannot have relief by an ordinary motion for a new trial must be quite clear. As has been pertinently remarked in a case altogether parallel in principle: ‘An application for a new trial of a case that has not been tried is an unintelligible request.”’ The Supreme Court, in Hoag v. Jeffers (1928) 201 Ind. 249, 159 N. E. 753, 754, gave expression to the same views as above set forth.

The court did not commit error in refusing to extend the time for filing a bill of exceptions. The record conclusively shows that “the time for the hearing” was not set “for a day prior to the expiration of the time first given” as required by the statute. Section 687 Burns 1926.

[2][3] Appellants so-called “motion” to set aside the default judgment will be considered a complaint. Acts 1921, c. 115, p. 277, section 423, Burns' 1926. See Hoag v. Jeffers, supra; Globe Mining Co. v. Oak Ridge Coal Co. (1922) 79 Ind. App. 76, 134 N. E. 508. The appellees appeared, trial was had, evidence was introduced, and the court rendered judgment to the effect that the default judgment should not be set aside. Appellants prayed an appeal. It is now well settled that the judgment of the trial court refusing to vacate the default judgment was final, and an appeal lies therefrom. Indiana Travelers', etc., Ass'n v. Doherty (1919) 70 Ind. App. 214, 123 N. E. 242; Hoag v. Jeffers, supra; Ayrshire Coal Co. v. Thurman (1920) 73 Ind. App. 578, 127 N. E. 810, 128 N. E. 764.

In the case of Hoag v. Jeffers, supra, Travis, J., speaking for the court, said: “It is the function of the trial court to decide the question whether or not the default judgment in the particular case must be set aside, which...