Murrer v. The Security Company

• Decision Date: 30 March 1892
• Docket Number: 15,641
• Citation: 30 N.E. 879,131 Ind. 35
• Parties: Murrer v. The Security Company et al
• Court: Indiana Supreme Court

30 N.E. 879

131 Ind. 35

Murrer v. The Security Company et al

No. 15,641

Supreme Court of Indiana

March 30, 1892

From the Hancock Circuit Court.

Judgment affirmed.

J. A New and A. M. New, for appellant.

C. L Henry, H. C. Ryan, F. A. Walker, E. Marsh and W. W. Cook, for appellee.

OPINION

Miller, J.

The appellant brought this action in the court below to set aside a default and judgment for the foreclosure of a mortgage rendered in favor of the Security Company.

The complaint shows that, upon the filing of the complaint in the original action, a summons issued to the sheriff of Hamilton county for the appellant. On the same day the sheriff returned the summons, showing service on the appellant and her husband "by reading the same to and in their hearing" on that day. In due course a decree of foreclosure was entered against appellant, and subsequently the mortgaged premises were sold upon the decree, and bid in by the judgment plaintiff. Shortly before the expiration of the year for redemption, the certificate of purchase was sold and assigned to Martha M. Hall, who obtained and holds a sheriff's deed for the premises.

The complaint avers that a portion of the premises was owned by the appellant and her husband as tenants by entireties, and not subject to mortgage for the debt of the husband.

The action was brought under section 396, R. S. 1881, which, among other things, provides that "The court may also, in its discretion, allow a party to file his pleadings after the time limited therefor, and shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise or excusable neglect, and supply an omission in any proceedings on complaint or motion filed within two years."

The complaint alleges "that said default, judgment and decree were taken through her inadvertence, mistake, surprise and excusable neglect in this, to wit: That no summons was ever served on her in said cause notifying her of the pendency of said suit, and that she never had any notice, knowledge or information whatever that said suit had been brought, or was pending against her, until long after said judgment and decree were rendered, and said real estate was sold by the sheriff on said decree and execution."

The appellees answered the complaint by general denial; the cause was tried and a finding made by the court in favor of the defendants.

The error assigned in this court is...