Schepp v. Pogue
| Decision Date | 18 March 1968 |
| Docket Number | No. 667A21,No. 1,667A21,1 |
| Citation | 142 Ind.App. 341,234 N.E.2d 874 |
| Parties | Rex SCHEPP, Appellant, v. Ivan D. POGUE and James B. Young, d/b/a Pogue any Young, Appellees |
| Court | Indiana Appellate Court |
Byrl L. Eltzroth, Martinsville, for appellant.
James B. Young, Franklin, for appellees.
This is an appeal from the Morgan Superior Court wherein the Appellees brought an action against the Appellant for attorneys fees alleged to have been due to them by the Appellant for services rendered by them in a divorce case.
The complaint was filed on July 8, 1965. Summons issued on July 8, was personally served on the defendant on the same day, and said summons required him to appear on or before July 24, 1965. The defendant did not appear on or before July 24, and thereafter on July 28, the defendant was defaulted for non appearance.
Thereupon evidence was heard and the court made and entered its finding for the plaintiffs against the defendant, in the sum of $3,250.00. Judgment followed upon the finding by the court.
Thereafter, and within the same term of court, the Appellant filed his Motion to Set Aside the Default Judgment, alleging therein that said judgment was taken through his mistake, inadvertence and excusable neglect, and through the contrivances of the plaintiffs to mislead the defendant. Said motion was overruled by the trial court and this ruling of the trial court is the assigned error on appeal.
The Appellant contends that in his said Motion to Set Aside Default Judgment he has alleged facts to show that the judgment was taken against him because of 'mistake, inadvertence and excusable neglect', within the meaning of Section 2--1068, Burns' Indiana Statutes, 1967 Repl., and that therefore the trial court was duty bound to set aside the judgment.
We have reviewed the record now before us, and we do not find therein a bill of exceptions containing any evidence introduced in support of the Motion to Set Aside Default Judgment. Nor do we find a bill of exceptions containing the proceedings of any hearing wherein the defendant made offers to prove the allegations of his said motion. Therefore we must assume that the defendant did not cause any evidence to be heard on his motion in support of the allegations contained therein.
Generally speaking, in a proceeding to set aside and vacate a default judgment which is taken through mistake, excusable neglect, inadvertence, or surprise, no answer, or other pleadings beyond the complaint or motion are necessary or contemplated. The matter is submitted on the complaint or motion and the evidence in support thereof. This evidence may consist of the complaint or motion itself, if it is verified, or affidavits and depositions in...
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Wellington v. Wellington
...burden of proof is upon the party seeking relief to establish the fraud alleged in his petition or motion to vacate. Schepp v. Pogue (1968) 142 Ind.App. 341, 234 N.E.2d 874. The essential elements of proof with respect to vacating an agreed settlement of litigation are not different from th......
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Kreczmer v. Allied Const. Co.
...appellee recovered the default judgment. Strickland does not support appellant's contention. In Schepp v. Pogue, et al. (1968), 142 Ind.App. 341, at 343, 234 N.E.2d 874, at 875--876 (transfer denied), which is dispositive of the present issue, the court 'Generally speaking, in a proceeding ......
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Continental Assur. Co. v. Sickels
...judgment. The proceedings with reference to the hearing on the merits should be governed by the principles set forth in Schepp v. Pogue, Ind.App., 234 N.E.2d 874 (1968). When proof is tendered within the rules of the Schepp case it still may be possible for the trial court to find under all......