Rooker v. Bruce

• Decision Date: 30 June 1908
• Docket Number: No. 21,100.,21,100.
• Citation: 171 Ind. 86,85 N.E. 351
• Parties: ROOKER v. BRUCE.
• Court: Indiana Supreme Court

171 Ind. 86

85 N.E. 351

ROOKER

v.BRUCE.

No. 21,100.^d1

Supreme Court of Indiana.

June 30, 1908.

Appeal from Circuit Court, Marion County; H. C. Allen, Judge.

Action by Margaret Bruce against William V. Rooker. Judgment was for plaintiff for want of an answer, and from an order overruling a motion to set aside the default and vacate the judgment, and an order denying a motion for a new trial, defendant appeals. Affirmed.William V. Rooker, in pro. per. Woodburn & Masson, for appellee.

MONTGOMERY, J.

Appellee commenced an action September 27, 1905, for the collection of a promissory note executed to her by appellant. On October 11th appellant was ruled to answer, and, failing to do so, on October 28th the court made an order requiring the rule to answer to be discharged on or before November 4, 1905. No answer having been filed, on November 18, 1905, judgment was rendered as upon a default. Two days later appellant filed a motion to set aside and vacate the judgment, which motion was sustained November 25, 1905. Subsequently an answer in abatement was filed, to which a demurrer was sustained, and then a motion to make the complaint more specific was overruled, and on March 23, 1907, appellant was ruled to answer the complaint on or before March 30, 1907, and no answer having been filed, on April 4, 1907, judgment as upon default was rendered in favor of appellee for $367.57, together with costs of the action. On May 2, 1907, at the same term of court, appellant filed a motion to set aside the default and vacate said judgment, and also tendered answers to the complaint for filing. May 4th appellee filed counter affidavits in opposition to appellant's motion, and on May 13th the court overruled said motion, to which ruling appellant duly excepted. June 1, 1907, appellant filed his motion for a new trial, which motion was overruled and an exception thereto properly saved.

It is alleged upon this appeal that the court erred (1) in overruling appellant's motion to set aside the default and vacate the judgment taken against him, (2) in refusing to receive and file the answers when tendered, and (3) in overruling his motion for a new trial. The third assigned error is in no manner presented or urged in appellant's brief, and must therefore be regarded as waived. Sanderson v. State, 169 Ind. 301, 82 N. E. 525;Stamets v. Mitchenor, 165 Ind. 672, 75 N. E. 579;O'Brien v. Knotts, 165 Ind. 308, 75 N. E. 594;Major v. Miller, 165 Ind. 275, 75 N. E. 159;Storer v. Markely, 164 Ind. 535, 73 N. E. 1081;Wolverton v. Wolverton, 163 Ind. 26, 71 N. E. 123. Furthermore, final judgment was rendered in this case as upon default, the demand was taken as confessed, and there was no trial in the true acceptation of that term. In such a case it has been expressly held that relief from the judgment cannot be obtained by an ordinary motion for a new trial. Meyers v. State, 156 Ind. 388, 59 N. E. 1052;Goodrich v. Stangland, 155 Ind. 279, 284, 58 N. E. 148;Ervin School Tp. v. Tapp, 121 Ind. 463, 23 N. E. 505;Corwin v. Thomas, 83 Ind. 110;Reed v. Spayde, 56 Ind. 394;Fiske v. Baker, 47 Ind. 534. The court made no separate order rejecting the proffered answers, but the error, if any, in refusing to receive the answers tendered after judgment is embraced in the decision overruling appellant's motion to set aside the default and vacate the judgment.

The dispatch of business by courts would be impossible, and intolerable delays result, without some rules governing the practice, and designed to expedite the transaction of business. In the absence of statute, therefore, courts of record have inherent power to make and enforce reasonable rules for the regulation of their business. State v. Van Cleave, 157 Ind. 608, 62 N. E. 446;Smith v. State ex rel., 140 Ind. 340, 36 N. E. 708;Vail v. McKernan, 21 Ind. 421;Lynch v. State, 9 Ind. 541; 11 Cyc. 740; 8 Am. & Eng. Ency. of Law, 29. Circuit courts are expressly authorized and directed to adopt rules for conducting the business therein, not repugnant to the laws of this state. Section 1443, Burns' Ann. St. 1908. The court below had the power, both inherently and by statute, to prescribe the time within which appellant might exercise his right to file an answer to the complaint. There is no claim that the time given in this case was unreasonable. Our statutes further provide that, “If from any cause, either party shall fail to plead or make up the issues within the time prescribed, the court shall forthwith enter judgment as upon a default, unless for good cause shown, further time be given for pleading, on the payment of the costs occasioned by the delay.” Section 410, Burns' Ann. St. 1908; section 177, Thornton's Ann. Civ. Code. It was manifestly in pursuance of this statute that the judgment against appellant was rendered. Provision is also made for relief from a judgment taken by default, to the effect that the court “shall relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, on a complaint or motion filed within two years.” Section 405, Burns' Ann. St. 1908; section 171, Thornton's Ann. Civ. Code. A motion made during the term at which the judgment was taken must be verified, and should show (1) a meritorious cause of action or defense, and (2) state the facts relied upon to establish mistake, inadvertence, surprise, or excusable neglect. The cause of action or defense stated must be accepted as true for the purposes of the application, but the facts set up as grounds of excuse for suffering the default and judgment to be taken may be controverted. The record discloses that counter affidavits of five persons were filed in opposition to appellant's motion. These affidavits were not incorporated in the record, and we are not advised of their contents or substance. In their absence it is manifest that we cannot say that the court erred in overruling appellant's motion to set aside the default and vacate the judgment.

Appellant further assumes that his failure to file an answer to appellee's complaint within...