Masten v. The Indiana Car And Foundry Co.

• Court: Indiana Appellate Court
• Writing for the Court: ROBINSON, J.
• Citation: Masten v. The Indiana Car And Foundry Co., 57 N.E. 148, 25 Ind.App. 175 (Ind. App. 1900)
• Decision Date: 18 April 1900
• Docket Number: 3,052
• Parties: MASTEN v. THE INDIANA CAR AND FOUNDRY COMPANY

57 N.E. 148

25 Ind.App. 175

MASTEN v. THE INDIANA CAR AND FOUNDRY COMPANY

No. 3,052

Court of Appeals of Indiana

April 18, 1900

Rehearing denied June 22, 1900.

From the Marion Superior Court.

Affirmed.

John B Sherwood, for appellant.

W. A Ketcham and F. E. Matson, for appellee.

OPINION

ROBINSON, J.

On May 29, 1896, at the May term of the Marion Superior Court, appellant obtained a judgment by default against appellee. At the next term, June 8, 1896, appellee moved to set aside the default and vacate the judgment, and with its motion filed the affidavit of its attorney, Mr. Ketcham, as to excusable neglect, mistake and inadvertence, and the affidavit of its general manager, Mr. Frazier, as to a meritorious defense to the original suit. Appellant appeared and filed the counter-affidavit of his attorney, Mr. Sherwood, in denial of appellee's right to the relief asked. Upon the hearing the default was set aside and appellee permitted to answer; and an answer in general denial was then filed. Time was given to file a bill of exceptions, which was done. An appeal to this court, from the order setting aside the default and vacating the judgment, was dismissed March 30, 1898. Masten v. Indiana Car, etc., Co., 19 Ind.App. 633, 49 N.E. 981.

The record then recites that May 24, 1898, "Come the parties, and this cause being called for trial and the plaintiff declining and refusing to introduce any evidence, the court finds for the defendants. It is therefore considered, adjudged, and decreed by the court that the plaintiff take nothing by this action and that the defendant recover of the plaintiff its costs, taxed at dollars."

Appellant assigns as error that appellee's motion and the the affidavits in its support do not state facts sufficient to constitute a cause of action, that the court erred in sustaining the defendant's motion to set aside the default and judgment, and that the court erred in rendering final judgment for the appellee.

The motion and the affidavits and the counter-affidavit are entitled as of the original case. As no objection was made to this in the court below and as the matter was disposed of upon its merits without objection to the form of the proceedings, no such question can be raised now, even conceding, without deciding, that it might have been successfully raised below. Beatty v. O'Connor, 106 Ind. 81, 5 N.E. 880.

To the statute, § 644 Burns 1894, § 632 Horner 1897, permitting appeals from final judgments only, there are certain exceptions. § 658 Burns 1894, § 646 Horner 1897. It was held that the former appeal, Masten v. Indiana Car, etc., Co., 19 Ind.App. 633, 49 N.E. 981, did not come within the exceptions, and that the judgment from which an appeal may be taken must make a final disposition of the cause.

If the motion and affidavits are to be disposed of "in a summary manner upon the affidavit and the facts within the knowledge of the judge", Ratliff v. Baldwin, 29 Ind. 16, we do not think the statute contemplates anything in the way of pleadings. A counter-affidavit is not an answer in the sense of pleading. The motion and affidavits do not attempt to state any cause of action. The whole purpose of the proceeding is not that the judgment may be adjudged null and void, but that the default may be set aside and the party be permitted to interpose a defense to the action. The moving party is not asking for a judgment, and a judgment of any kind in his favor does not necessarily follow if he is successful. A demurrer to the motion and affidavits for want of facts would have amounted simply to a submission of the motion and affidavits to the court for a hearing on the facts therein set out.

In the case at bar, the proceeding was a motion supported by two affidavits. Appellant appeared in response to notice, filed a counter-affidavit, and upon these the matter was submitted and determined.

As said by the court in Brumbaugh v. Stockman, 83 Ind. 583: "Whether the proceeding be by complaint or motion, it must be determined in a summary manner; no pleadings are contemplated beyond the complaint or motion. Buck v. Havens, 40 Ind. 221; Lake v. Jones, 49 Ind. 297; Nord v. Marty, 56 Ind. 531. Upon a complaint, the evidence may consist of affidavits, depositions or oral testimony, but a motion is still properly heard on affidavits only, although in the discretion of the court oral testimony may be heard also; counter-affidavits being admissible on the point on which relief is sought, but not as to the cause of action."

Had a demurrer been filed, the sufficiency of the motion and affidavits might have been tested. Thompson v. Harlow, 150 Ind. 450, 50 N.E. 474; Durre v. Brown, 7 Ind.App. 127, 34 N.E. 577.

The motion and affidavits must be considered as a whole. It does not appear that they were submitted to the court as a pleading. Appellant appeared and filed a counter-affidavit, submitted the issues presented by the several affidavits, not as a matter of pleading, but of evidence. Whether the statute does or does not contemplate any pleading "beyond the complaint or motion", as indicated by the above authorities, we think it not an unsafe rule to hold that if such an application is not treated as a pleading in the trial court, it can not be thus questioned on appeal. As the questions argued may all be properly considered under the second assignment, it is not necessary further to notice the first.

It is argued that the affidavit of Mr. Ketcham shows that when appellee was served with summons, it gave no attention to defending the action. In answer to this it is enough to say that the affidavit clearly shows that when the default was taken Mr. Ketcham represented appellee as its attorney in the matter in controversy and that the relation of attorney and client existed. From the facts set out in the affidavit it is clear that appellee had a right to rely upon his attention to the cause. That the negligence of an attorney is the negligence of his client is well settled. It is shown that he was employed three months before suit was brought to defend the action if brought, and was told by appellee to appear and defend in the event any action was brought, and that he investigated the matter before suit was brought and reported the result of his investigation to appellee. It is evident from all the facts that the default judgment was not proximately caused by appellee's negligence.

The statute does not require that the motion and affidavits should set out the original cause of action but simply the nature of it. The facts constituting the defense must be shown, but it is necessary to state only the nature or character of the original action. In passing upon such an application the court will not inquire into the merits of the original action and, for this reason, counter-affidavits as to the alleged facts relied on as a defense are not admissible. Dobbins v. McNamara, 113 Ind. 54, 3 Am. St. 626, 14 N.E. 887; Buck v. Havens, 40 Ind. 221; Nord v. Marty, 56 Ind. 531.

From the motion and affidavits it is clear the original action was by appellant against appellee for personal injuries. Durre v. Brown, 7 Ind.App. 127, 34 N.E. 577; Wills v. Browning, 96 Ind. 149.

Some confusion arises from the fact that the affidavits and counter-affidavits refer to the complaint, and it, with the answer, is set out in the transcript. They necessarily came before the trial court at some stage of this proceeding for the reason that the final judgment rendered could not have been rendered without them. But, in any event, there is enough in the affidavits themselves to show the nature of the original action and that appellee had a meritorious defense. The principal question in the case is whether there is a showing of mistake, inadvertence or excusable neglect.

The affidavit of Mr. Ketcham shows, among other things, that during the time in question he was Attorney-General of the State, and sets out the particular public duties in which he was at the times in question constantly engaged, and which called him away from his office on the three days following the 8th day of May; that he maintained a private office where he kept assistants to whom it was his universal custom to refer matters of entering appearances and filing pleadings in his private practice, and to whom was left the duty of attending to all matters connected with cases pending in court up to the time of the actual trial; that on May 8th, he received a letter inclosing a copy of the summons and intending to send them to his private office asking his assistants to attend to the case, as was his custom in such matters; that he did not send the letter and summons, but left them on his desk where, either by the carelessness of the janitor or of some one unknown to the affiant, they became covered up with other papers and thenceforth escaped his attention; that affiant supposed he had sent the papers to his assistants and acted upon that belief, until June 4th following when his attention was called to the fact that no appearance had been entered and that judgment had been taken by default; that he immediately investigated the matter and then learned that he had not sent to his private office the letter and summons, but that they still remained on his desk under some papers of matters that had been disposed of and that were not requiring attention. It is also shown that the application is not made for delay but for the purpose of being permitted to defend the action and that, upon a hearing, appellee will show there is no liability against it as stated in the complaint.

While the counter-affidavit does not in terms contradict any particular averment contained in the affidavits in behalf of appellee, yet it is in conflict with the showing made...