Johnson v. First National Bank of Whiting
| Decision Date | 14 November 1917 |
| Docket Number | 9,394 |
| Citation | 117 N.E. 676,65 Ind.App. 629 |
| Parties | JOHNSON v. FIRST NATIONAL BANK OF WHITING |
| Court | Indiana Appellate Court |
From Lake Superior Court; Charles E. Greenwald, Judge.
Action by First National Bank of Whiting against August H. W Johnson and another. From a judgment for plaintiff, the defendant named appeals.
Affirmed.
Meade & Royce, for appellant.
F. N Gavit John C. Hall and Walter H. Smith, for appellee.
Appellee brought this action against appellant and Carl Johnson to recover on an assignment of account executed by the latter to appellee, and directed to, and accepted by, appellant. Process was not served on Carl Johnson. Appellant filed an answer in two paragraphs. On December 19, 1913, the action was dismissed by the court for want of prosecution. On February 2, 1914, at a subsequent term, an entry was made restoring the cause to the docket, the entry being as follows: "Upon motion of the plaintiff this action is now restored to the docket." The sole error assigned and relied on is predicated on the action of the court in restoring the cause to the docket.
It will be observed that the entry does not disclose that appellant reserved an exception to the ruling complained of, or whether the appellant was in court or had knowledge of such ruling at the time. Nor does it affirmatively appear that appellee filed with the court a complaint or motion in writing that formed the basis of the ruling complained of, or that notice of any such motion was served on appellant, or that appellee made a showing of mistake, inadvertance, surprise, or excusable neglect, and thus appealed to the court to be relieved from the consequences of the dismissal of the action.
The following further facts should be considered: On May 13, 1914, the cause was submitted to the court for trial; appellant failed to appear and was defaulted, and judgment rendered against him. On September 21, 1914, appellant filed a motion in writing to set aside such default, and that he be permitted to defend, which motion was sustained, and the default set aside February 1, 1915. Subsequently appellee demurred to the second paragraph of appellant's answer theretofore filed, whereupon appellant withdrew such paragraph. A trial was thereupon had, the evidence heard, and judgment rendered in favor of appellee and against appellant. Appellant subsequently filed a motion for a new trial, which was overruled.
In considering the questions presented, we shall assume that appellant was not in court, and that he did not have knowledge, at the time, of the action of the court in restoring the cause to the docket. We shall assume also that the court's action was predicated on the mere verbal motion of appellee, and that notice of such motion was not served on appellant. It appears also from the record that appellant subsequently was informed from some source respecting the actual state of the record, and that judgment had been entered against him on default. Thereafter he appeared, procured the default to be set aside and the judgment to be vacated, participated in completing the issues and in the trial, and thereafter filed his motion for a new trial. In none of such subsequent proceedings did he complain of the court's order restoring the cause to the docket, or take any steps to procure the vacating of such order, or make any objection or reserve any exception to the action of the court in that respect. In the place of bringing to the attention of the court any grievance that he felt had been inflicted on him, he conducted himself in such a manner as apparently to indicate that the prior proceedings were satisfactory to him. Under such circumstances may appellant predicate available error on the action of the court in restoring said cause to the docket?
There is a statute to the effect that the court shall relieve a party from a judgment taken against him through his mistake, inadvertance, surprise or excusable neglect, on complaint or motion filed within two years. § 405 Burns 1914, § 396 R. S. 1881. In West v. Noakes (1842), 6 Blackf. 335, 38 Am. Dec. 146, decided before there was any specific statute on the subject, it was held error to restore an action which had been dismissed at a previous term, no cause being shown for restoring it. Brumbaugh v. Stockman (1882), 83 Ind. 583, was decided under § 99 of the act of 1852 (2 R. S. 1852 p. 48). That section on the subject of setting aside defaults was practically identical with § 405, supra, as above outlined, except that the former contained no provision specifying that the party in default should proceed by complaint or motion. However, in the case last cited the court said: The present statute contemplates a complaint or motion in writing. Indianapolis, etc., R. Co. v. Crockett (1891), 2 Ind.App. 136, 28 N.E. 222.
If the application to be relieved from a judgment taken on default is made at a subsequent term, such application is in the nature of a new proceeding. The party in default should therefore proceed by a pleading in the nature of a complaint and, in the absence of an appearance, notice is required. Albany Land Co. v. McElwaine, etc., Co. (1894), 11 Ind.App. 477, 39 N.E. 297.
Here at a subsequent term the machinery of the court was set in motion by a mere verbal application on which no notice was issued, and to which appellant did not appear. We conclude that the action of the court in restoring said cause under the circumstances was at least erroneous.
Appellant however, reserved no exception to the action of the court in restoring the cause. It is provided by statute that the party objecting to any decision of the court must except at the time the decision is made. § 656 Burns 1914, § 626 R. S. 1881. In order that a person may be required to object and except to a decision purporting to affect his rights, it is essential that the court in rendering its decision have jurisdiction over his person. Where the requirement exists, ...
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