Nash v. Cars

• Decision Date: 28 September 1883
• Docket Number: 10,056
• Citation: 92 Ind. 216
• Parties: Nash v. Cars et al
• Court: Indiana Supreme Court

92 Ind. 216

Nash v. Cars et al

No. 10,056

Supreme Court of Indiana

September 28, 1883

Petition for a Rehearing Overruled Dec. 19, 1883.

From the Tippecanoe Circuit Court.

The judgment is affirmed, with costs.

J. R Coffroth and T. A. Stuart, for appellant.

A Parsons, E. A. Greenlee, G. O. Behm and A. O. Behm, for appellees.

OPINION

Franklin, C.

Appellee Theresa Cars filed a complaint and entered a motion to set aside a default and decree of foreclosure of a mortgage, as to her.

A demurrer was overruled to the complaint and motion, a denial filed, and on proof the default and decree were set aside.

An answer was filed to the original complaint for foreclosure, to the second paragraph of which (the first being a denial) a demurrer was overruled, and for the want of a reply judgment was rendered for said appellee.

The following errors have been assigned:

1st. The overruling of the demurrer to the complaint and motion to set aside the default and judgment.

2d. The setting aside of the default and judgment as to the said Theresa.

3d. Overruling the demurrer to the 2d paragraph of Theresa's answer to the original complaint.

In proceedings to set aside a default, whether by motion at the same term or subsequent complaint filed, no pleadings on the part of the opposite party are contemplated or are necessary. Brumbaugh v. Stockman, 83 Ind. 583; Nord v. Marty, 56 Ind. 531; Lake v. Jones, 49 Ind. 297; Buck v. Havens, 40 Ind. 221.

But where a demurrer is filed to the complaint, it presents the question as to the sufficiency of the facts stated. Nord v. Marty, supra.

If the demurrer is overruled, the defendant may be heard, upon affidavits or oral evidence, to controvert the alleged excuse for suffering the default to go. Lawler v. Couch, 80 Ind. 369, and the authorities therein cited.

The complaint, in order to be good, must show that the judgment was taken against the complaining party, through his mistake, inadvertence, surprise or excusable neglect, and that he has a meritorious defence; and the facts constituting the same should be clearly set forth. Nord v. Marty, supra.

The sufficiency of the complaint being thus presented, it is necessary to state a part of it and the substance of the remainder.

The complaint was filed on the 10th day of November, 1880, and alleges that at the May term of said court, 1879, the defendant Job M. Nash filed a complaint in said court against Adolph Cars and others, including this plaintiff, claiming that said Adolph Cars was indebted to him in the sum of $ 889, which was evidenced by a certain promissory note, and secured by a mortgage upon the real estate in controversy, executed by said Adolph Cars to said Nash on the 27th day of July, 1875; that at said term judgment was rendered by default against Adolph Cars for the amount of the note, and a foreclosure of the mortgage against all the defendants. The complaint then avers:

"That she is a German woman unable to speak or understand the English language; that she had no knowledge whatever of said cause of complaint having been filed against her until after the judgment had been taken and the sale of the property had that she does not believe that said summons was ever read to her, and that, if it was, she has no recollection thereof, and that, if it was read to her, she did not know the contents or meaning thereof, and the same was not explained to her by any one, and that she had no knowledge, either directly or indirectly, of said suit until after the sale had been had; that she did not know that there was a judgment against her until informed thereof by Isaac Parsons, Esq., and that by the said decree she was found to have no interest whatever in the real estate described in said mortgage, and subsequently sold; that said Job M. Nash caused said real estate to be sold on the 12th day of July, 1879, at sheriff's sale, by virtue of an order of sale issued on said decree, and at said sale became and was the purchaser of said real estate, and now claims the title thereto. And the plaintiff alleges that she has a good defence to said action; that long prior to the making of said mortgage, to wit, on the 7th day of July, 1873, she obtained from Adolph Cars, the then owner of said real estate, a life lease on said real estate, which lease was duly acknowledged as required by law, and recorded on August 20th, 1873, in the recorder's office of Tippecanoe county, Indiana, where said real estate is situated; that said lease was in full force at the time of the making of said mortgage to said Nash, at the time of the sale, and is still in force; and that she is in possession of said lease, and has been ever since the making thereof. And the plaintiff alleges that said Job M. Nash, at the time he instituted said suit, at the time he took said default and said judgment and decree of foreclosure, and at the time he became the purchaser of said real estate at sheriff's sale, well knew...