Hoag v. Jeffers
| Decision Date | 26 January 1928 |
| Docket Number | 25,551 |
| Citation | 159 N.E. 753,201 Ind. 249 |
| Parties | Hoag et al. v. Jeffers |
| Court | Indiana Supreme Court |
Rehearing Denied July 3, 1929.
1. JUDGMENT---Default Judgment---When will be set Aside.---In order to obtain relief from a default judgment under 423 Burns 1926, the judgment must have been taken through the mistake, inadvertence, surprise or excusable neglect of the judgment defendant, and the complaint to set aside the default must show that he has a meritorious defense to the cause of action upon which the judgment was founded. p. 252.
2. APPEAL---Weighing Evidence---In Proceeding to Set Aside Default.---An appellate tribunal has no more right to weigh the evidence on appeal from a proceeding to set aside a default than in other appeal cases. p. 253.
3. JUDGMENT---Default Judgment---Proceeding to Set Aside---Sufficiency of Evidence---Trial Court Must Determine.---In a proceeding under 423 Burns 1926 to set aside a default judgment, the trial court must determine the sufficiency of the evidence which bears upon the question of the mistake, inadvertence, surprise or excusable neglect of the plaintiff. p. 253.
4. JUDGMENT---Default Judgment---Presumed to be Properly Entered.---A default judgment, regular on its face, is supported by the presumption that it was properly entered when the record does not show anything inconsistent with such presumption. p. 253.
5. APPEAL---Proceeding to Set Aside Default Judgment---Finding and Judgment Supported by Evidence---Judgment Affirmed.---On appeal from a proceeding under 423 Burns 1926 to set aside a default judgment, if there is any evidence to support the finding and decision of the trial court, they will be sustained. p. 254.
6. Judgment---Setting Aside Default---For Mistake Inadvertence or Excusable Neglect---Evidence Held Insufficient to Require.---On appeal from a proceeding under 423 Burns 1926 to set aside a default judgment, the evidence held sufficient to sustain the finding of the trial court that there was not such mistake, inadvertence or excusable neglect as required the setting aside of the judgment, p 254.
7. JUDGMENT---By Default---Relief From---By Defendant Duly Summoned---Motion for New Trial Ineffective.---A defendant who has been duly summoned to appear to an action, and has failed to do so, cannot obtain a review of the legality of a default judgment against him by a motion for a new trial, his only remedy being a proceeding under 423 Burns 1926 to set aside the default because of his mistake, inadvertence, surprise or excusable neglect or a proceeding to review the judgment, p. 254.
8. NEW TRIAL---Judgment by Default---Motion for New Trial Improper.---Where the judgment was rendered on default, there was, in fact, no trial, and a motion for a new trial is not proper, p. 255.
9. NEW TRIAL---Judgment by Default---Hearing Evidence as to Plaintiff's Damages---Not a Trial---Motion for New Trial not Authorized.---Hearing evidence as to the amount of plaintiff's damages, after defaulting the defendants for failure to comply with an order of court, was not a proceeding in the nature of a trial which would authorize the defendants to file a motion for a new trial, p. 255.
From Marion Superior Court (A31,857); Clinton H. Givan, Judge.
Action by William Gage Hoag and others against Hiram H. Jeffers to set aside a judgment by default. From a judgment for defendant, the plaintiffs appealed to the Appellate Court. (Transferred to the Supreme Court under cl. 2, § 1357 Burns 1926.)
Affirmed.
Bingham & Bingham, for appellants.
LaFollette & Brill, for appellee.
Travis, J. Martin, J., did not participate in the decision of this appeal.
This is an action by appellants against appellee by complaint (denominated within itself a motion) under and by virtue of § 423 Burns 1926, for relief from a judgment taken against appellants through their mistake, inadvertence, surprise, and excusable neglect, which judgment followed an order of default upon appellants by the court.
Appellee, by his amended complaint, sued appellants and others in an action of tort for damages. The original complaint having been filed on July 8, 1925, and summons issued and served upon appellants, which summons was to appear on September 7, 1925. Thereafter, on November 6, 1925, after the filing of the amended complaint, the court entered its order that appellants Hoag, Darnall and Rose answer by November 13, 1925. The appearance of these three appellants had been entered by appellant Hoag as attorney for himself and the other two. Appellant Hays had entered no appearance in the action. December 17, 1925, appellant Hays was defaulted for non-appearance, and appellants Hoag, Darnall and Rose defaulted upon their failure to comply with the order of the court to answer the complaint. Thereupon, the same day, after the defaults were entered, evidence was heard and the court being duly advised in the premises, made and entered its finding for plaintiff against the defendants in the sum of $ 2,275 with costs, and judgment followed upon the finding by the court. The prayer of the complaint asked for $ 2,500. Appellants appeared before the court January 2, 1926, and filed their complaint (denominated by them a motion) and asked that the default theretofore entered by the court be set aside, and that the judgment entered upon said default be set aside, and the appellants be permitted to file answer in general denial to said complaint. The complaint by appellants, by which they sought to have the judgment of default and judgment in damages set aside, was based solely on account of mistake, inadvertence, surprise and excusable neglect on the part of them and each of them, based upon the facts as stated in their complaint, and that appellants have a meritorious defense.
There is but one question before the court upon this appeal, which question is based upon the judgment of the court in favor of the appellee and against appellants refusing to set aside the default and judgment by default.
Under the statute now in force (§ 423 Burns 1926), as under former statutes somewhat similar in effect (§ 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. Woodard v. Killen (1925), 196 Ind. 570, 148 N.E. 195; Nash v. Cars (1883), 92 Ind. 216; Nord v. Marty (1877), 56 Ind. 531, 535; Buck v. Havens (1872), 40 Ind. 221; Hill v. Crump (1865), 24 Ind. 291, 294; Rooker v. Bruce (1908), 171 Ind. 86, 89, 85 N.E. 351.
This question is presented by a bill of exceptions of the evidence heard by the trial court to sustain the complaint to set aside the judgment. Appellant Hoag testified that his occupation was that of an attorney at law. Although admitted to practice in 1908, he could not tell how long he had been practicing at the bar of Marion County, and testified that he had not practiced much in the courts since 1917. He remembered that the summons in the case upon which the judgment against him was founded was served upon him, and that thereafter his codefendants authorized him as their attorney to appear in the cause of action against them and file answer. On November 6, 1925, he (Hoag) went to the clerk's office in the court house and entered his appearance for himself and his codefendants except his codefendant Hays. And the reason he did not enter his appearance for Hays was that he must have overlooked it when he was writing his name and...
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