Moore v. Horner

Decision Date24 November 1896
Citation146 Ind. 287,45 N.E. 341
CourtIndiana Supreme Court


Appeal from circuit court, Boone county; B. S. Higgins, Special Judge.

Action by Truman E. Horner against Willis E. Moore to set aside a former judgment between the parties. Judgment for plaintiff, and defendant appeals. Reversed.

Ira M. Sharp, for appellant. Terhune & New, for appellee.


This action was brought by appellee in the court below, under section 396. Rev. St. 1881 (section 399, Rev. St. 1894), to set aside a default and judgment of said court quieting appellant's title to certain real estate. That part of the complaint which it is claimed sets out “the facts which show that the judgment was taken against appellee through his mistake, inadvertence, surprise, or excusable neglect,” is substantially as follows: “The original action to quiet title was commenced by appellant in the Boone circuit court on December 30, 1892, against appellee and others, including one Richard M. Crouch. That summons was served on appellee ten days before the return day thereof, by copy; that said Richard M. Crouch, as the agent of appellee, employed the firm of Wesner & Wesner, practicing attorneys, to appear for appellee and make his defense to said action; that said attorneys accepted said employment, and agreed to look after appellee's interest in said action, and notify him when he should be needed; that said Wesner & Wesner entered their appearance generally for the defendants; that afterwards one Patrick H. Dutch, a practicing attorney of said court, announced in open court that he appeared for Matilda Horner, one of the defendants in said cause; that C. S. Wesner, a member of said firm of Wesner & Wesner, was present in court, and heard said announcement, and understood and believed that said appearance was for appellee, and, by reason of said misunderstanding, he did not thereafter appear for appellee, but appeared for O. D. Wesner and Crouch and wife, who were also defendants in said cause; that afterwards a rule of court was taken against the defendants to answer, but, because of said misunderstanding, no one appeared for appellee, and no answer was filed for him, and on the 22d day of January, 1893, a default was taken against appellee, without his knowledge or consent, and without his knowing that Wesner & Wesner were not appearing for him, and without Wesner & Wesner knowing that Dutch was not appearing for appellee, and afterwards, on February 4, 1893, appellant recovered judgment on said default, quieting his title to said lands.”

It is earnestly insisted by appellant “that the facts stated in the complaint do not show that judgment was taken against appellee through his mistake, inadvertence, surprise, or excusable neglect, but that the facts alleged show that the same was taken on account of the negligence of his attorneys, and that their negligence is attributable to him.” It is clear that the facts alleged show that the default was taken and judgment rendered against appellee on account of the negligence of his attorneys. When C. S. Wesner, his attorney, understood from the announcement made by Mr. Dutch that he appeared for appellee, proper diligence required that he make some inquiry of Dutch in regard to the same, and that he examine the files in the case. This he never did. He knew that Matilda Horner was a co-defendant in said cause with the appellee, Truman Horner. An examination of the issue docket, order book, entry, or the answers filed, would have disclosed his mistake. His failure to make such inquiry and examination was gross negligence. It is a general rule that no mistake, inadvertence, or neglect attributable to an attorney can be successfully used as a ground of relief, unless it would have been excusable if attributable to the client. The acts and omissions of the attorney in such case are those of the client. Railway Co. v. Hood, 130 Ind. 594, 596, 30 N. E. 705, 706;Sharp v. Moffitt, 94 Ind. 240;Kreite v. Kreite, 93 Ind. 584, 586;Brumbaugh v. Stockman, 83 Ind. 583;Cox v. Harvey, 53 Ind. 174;Phelps v. Osgood, 34 Ind. 150;Frazier v. Williams, 18 Ind. 416;Spaulding v. Thompson, 12 Ind. 477;Heaton v. Peterson, 6 Ind. App. 1, 31 N. E. 1133; 2 Elliott, Gen. Prac. § 1032, and cases cited in note 2. It follows, therefore, that the facts stated in the complaint did not entitle appellee to any relief under the provisions of section 396, Rev. St. 1881 (section 399, Rev. St. 1894), supra.

It appears from the evidence given in this case that at the January term, 1893, of said court (the same term at which said judgment was rendered), appellee filed his written motion to set aside the default and judgment in said cause; that he afterwards filed an amended motion to set aside said default and judgment, which motion was supported by the affidavits of himself, Wesner, and Crouch, the affidavit of Wesner in support of said motion being the same as the one given in evidence by appellee in this proceeding, to which motion, as amended, appellant filed a counter affidavit as to the excuse or mistake averred in said motion for allowing said default to be taken; that afterwards, at the March term of said court, said motion was overruled, to which appellee excepted. When the court overruled said motion, that was a final judgment in said proceeding; and the presumption is that the same was determined upon its merits, unless the contrary is shown. 1 Van Fleet, Former Adj. §§ 15-21, and cases cited. The grounds for setting aside said default and judgment alleged in said motion filed by appellee in 1893 were the same as those contained in the complaint in this proceeding, except that appellee's defense to the original action is more specifically stated in the complaint in this case than in said motion. It is not essential, under our practice, that a motion to set aside a default under section 396, Rev. St. 1881 (section 399, Rev. St. 1894), supra, be verified. It is settled law that, whenever a matter is adjudicated and finally determined by a competent tribunal, it is considered forever at rest. This principle not only embraces what was actually determined, but extends to every other matter which the parties might have litigated in the case. Parker v. Obenchain, 140 Ind. 211, 39 N. E. 869;Wilson v. Buell, ...

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