Roy v. Scales
| Decision Date | 23 February 1922 |
| Docket Number | 11,227 |
| Parties | ROY v. SCALES |
| Court | Indiana Appellate Court |
From Pike Circuit Court; John F. Dillon, Judge.
Action by John W. Scales against Elijah Roy in which judgment was rendered for plaintiff. Defendant's motion to set aside the judgment was denied, and he appeals.
Affirmed.
Roscoe Kiper, Henry F. Fulling and Arthur H. Taylor, for appellant.
Frank Ely, for appellee.
OPINION
The record in this case discloses that this action was begun by the appellee by filing his complaint in the Pike Circuit Court on September 4, 1919. It further discloses that on September 23, 1919, the appellant appeared by counsel and filed his demurrer to said complaint, and that afterward on February 6, 1920, said demurrer was by the court sustained and appellee given leave to file an amended complaint; that thereafter an amended complaint was filed and a rule taken against the appellant to answer said complaint by February 13, 1920; that on February 13, 1920, appellant appeared in said cause by his attorneys and filed his demurrer to said amended complaint; that on February 19, 1920, said demurrer was by the court overruled and appellant ruled to answer said amended complaint by February 27, 1920; that on February 26 1920, an answer of general denial was filed to said complaint.
It further appears from the record herein, as shown by order-book entry, that on May 13, 1920, the following proceedings were had in this cause,-- "Comes now the plaintiff in person and by his attorneys, Frank Ely and Harry W. Carpenter, but the defendant comes not either in person or by attorney, and this being the day that said cause was assigned for trial, and now the defendant being three times solemnly called in open court comes not but herein wholly makes default.
"And now said cause is submitted to the court for trial, finding and judgment without the intervention of a jury." The record further discloses that the cause was then and there heard by the court and a finding made in favor of appellee with judgment and decree accordingly.
It further appears by said record that after the submission of said cause and upon the trial thereof the appellee asked leave of the court to amend the prayer of his complaint in the amount of the damages asked so that said prayer would read $ 400 instead of $ 300 as the same was originally filed, which leave the court granted and the complaint was so amended.
It further appears that on May 17, 1920, the appellant by his attorneys appeared in court and filed their petition to set aside said judgment under the provisions of § 405 Burns 1914, § 396 R. S. 1881.
On May 27, 1920, the said court having considered said motion and the evidence offered in support thereof, overruled the same and appellant was given thirty days in which to prepare and present a bill of exceptions. Thereafter, on June 1, 1920, the appellant filed his motion for a new trial in the above cause assigning various reasons therefor, not necessary to be set out in this opinion. This motion was finally overruled May 26, 1921, at which time appellant prayed an appeal to this court and time was given in which to file bond and bill of exceptions which were thereafter duly filed and this appeal duly perfected.
The errors assigned and presented relate: (1) to the action of the court in overruling appellant's motion to set aside said judgment; (2) permitting appellee to amend his complaint in the respect stated; (3) the trial and rendition of judgment in said cause in the absence of defendant; and (4) that the decision of the court is contrary to law.
It appears from this record that the parties hereto are the owners of adjacent tracts of land in Pike county; that forty acres owned by the appellant adjoins forty acres owned by the appellee on the north, the two forties comprising the west half of the northeast quarter of section 13, township 3 south, and range 8 west.
By the complaint herein the appellee sought to have a certain private nuisance--a ditch constructed by the appellant on the line between the lands owned by the respective parties--abated, and he asked also for a money judgment for damages which he alleged he had suffered.
We shall first notice the action of the court in refusing to set aside said judgment and grant a new trial.
The law does not require that courts shall do useless things. The appellant either did, or did not have a defense to appellee's cause of action. If he had no defense thereto--if he had been guilty of doing the wrongful act complained of whereby appellee had sustained damage--then appellee would upon another trial be entitled to the relief granted in the trial already had, and such second trial would avail nothing. Hence we have the rule that in cases of this kind the application must show that the applicant has a valid or meritorious defense to the original action, and it must state what that defense is. Rupert v. Martz (1888), 116 Ind. 72, 18 N.E. 381; Ziegler v Funkhouser (1908), 42 Ind.App. 428, 85 N.E. 984; Rooker v. Bruce (1908), 171 Ind. 86, 85 N.E. 351. The appellant in his said petition alleged: "That he has a good and meritorious defense to said cause of action, and if said judgment is set...
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