Strickland v. O'Rear, 19298

• Decision Date: 20 September 1961
• Docket Number: No. 19298,No. 1,19298,1
• Parties: Don STRICKLAND, Appellant, v. Charles A. O'REAR, Appellee
• Court: Indiana Appellate Court

Page 902

176 N.E.2d 902

134 Ind.App. 247

Don STRICKLAND, Appellant, v. Charles A. O'REAR, Appellee.

No. 19298.

Appellate Court of Indiana, Division No. 1.

Sept. 20, 1961.

Rehearing Denied Nov. 10, 1961.

DeRoo Weber, Mount Vernon, Evansville, for appellant.

John D. Clouse, Evansville, for appellee.

RYAN, Presiding Justice.

Appellant, the plaintiff below, filed his complaint to set aside a default judgment which had been rendered against him in the Posey Circuit Court. The appellee filed his answer denying the material allegations thereof under Rule 1-3, and a second paragraph of answer pleading res judicata. The appellant, plaintiff below, then filed his second paragraph of complaint, alleging among other things that the appellant had filed his motion to set aside the judgment, that a hearing was held thereon, and that the same was overruled. The appellant further filed his reply to the appellee's, defendant below, second paragraph of answer which denied the allegations of res judicata, and the defendant-appellee filed his answer to the plaintiff's, appellant, second paragraph of complaint, admitting the allegations therein.

By agreement of the parties the court then found for the defendant-appellee upon the plaintiff-appellant's first paragraph of complaint and for the defendant-appellee upon both his first and second paragraphs of answer to the plaintiff-appellant's first paragraph of complaint.

It was then stipulated by and between the parties that the allegations in the plaintiff-appellant's second paragraph of complaint were true and that the same should be admitted into evidence. No further evidence was introduced, and on this state of the record the court rendered judgment for the defendant-appellee and against the plaintiff-appellant. The plaintiff-appellant then filed his motion for a new trial, which was overruled, and from such action of the trial court prosecutes this appeal.

This court in the case of Swartz v. Swartz, 1951, 121 Ind.App. 635, at page 643, 101 N.E.2d 822, at page 825, stated:

'The law regarding the setting aside of default judgments, taken as a result of the mistake, inadvertence, surprise or excusable neglect of the defendant, is ably stated in the following cases:

'In the case of Hoag v. Jeffers, 1928, 201 Ind. 249, 252, 253, 159 N.E. 753, 754, the court said:

"Under the statute now in force (section 423, Burns 1926), as under former statutes somewhat similar in effect (section 396, R.S.1881), to obtain relief from a judgment taken against a party by virtue of the action granted him by this statute, two things must concur: (1) The judgment taken against the judgment defendant through his mistake, inadvertence, surprise or excusable neglect; and (2) his showing by his complaint that he has a meritorious defense to the cause of action upon which the judgment against him was founded. Woodward [Woodard] v. Killen, (1925), 196 Ind. 570, 148 N.E. 195; Nash v. Cars, (1883), 92 Ind. 216; Nord v. Marty, (1877), 56 Ind. 531, 535; Buck v. Havens, (1872), 40 Ind. 221; Hill v. Crump, (1865), 24 Ind. 291, 294; Rooker v. Bruce, (1908), 171 Ind. 86, 89, 85 N.E. 351.

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"It is the function of the trial court to decide the question whether or not the default judgment in the particular case must be set aside, which action requires it to determine the sufficiency of the evidence, which bears upon the question of the mistake, inadvertence, surprise or excusable neglect of the plaintiff. United States Fidelity, etc., Co. v. Poetker, (1913), 180 Ind. 255, 102 N.E. 372, L.R.A.1917B 984.'

'In the case of Carty v. Toro, (1944), 223 Ind. 1, 4, 57 N.E.2d 434, the court stated:

"As indicated in the beginning the trial court in ruling upon the petition was required to exercise a sound judicial discretion. 31 Am.Jur. Judgments, § 717, United States Fidelity, etc. Co. v. Poetker, (1913), 180 Ind. 255, 268, 102 N.E. 372, 376. Its decision will be set aside only for an abuse of such discretion. With this rule in mind the facts alleged must be analyzed."

The authority cited above reveals that there is a well-settled rule in this state that trial courts have discretionary power in passing on motions or petitions to set aside default judgments, and unless the record shows an abuse of this legal discretion, courts of appellate jurisdiction will not disturb the judgment of the lower court. See also Kruse v. State ex rel., 1913, 55 Ind.App. 203, 103 N.E. 663; Delewiski v. Delewiski, 1921, 76 Ind.App. 44, 131 N.E. 229; Houser v. Laughlin, 1914, 55 Ind.App. 563, 104 N.E. 309.

With this rule in mind it is essential to analyze the facts alleged in the appellant's second paragraph of complaint which was the only evidence before the trial court to determine if the court did in fact abuse its discretion in refusing to set aside the default judgment.

The first five numerical paragraphs of the appellant's second rhetorical paragraph are merely a recital of the action taken in the trial court in regard to the original cause of action which resulted in the default judgment in favor of the appellee. The sixth numerical paragraph is a statement of the nature of the cause of action. The seventh paragraph is an allegation that the default judgment was contrary to law because the relief granted to a plaintiff in a case where the defendant has been defaulted cannot exceed that which is demanded in the complaint. There was a prayer by the appellant that the judgment be set aside and that he be allowed to make his defense.

The question as to whether or not it is essential for one seeking to set aside a default judgment to show that he has a meritorious defense to the original action has been well settled by our courts.

This court in the case of Roy v. Scales, 1922, 77 Ind.App. 619, at page 622, 133 N.E. 924, at page 925, stated:

'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 aside he will appear at the trial of said cause and show by proof that the plaintiff has not suffered the damages as alleged in his complaint, and that he is not entitled to the mandatory injunction as made and ordered in this cause.' This does not meet the requirement of the law. What the particular defense, which they propose to make upon a second trial, is, he does not disclose. Before a trial upon the merits a general denial is sufficient, and the party is not required to disclose what particular defense he proposes to make under such answer. But upon an application of this kind, it is different; the particular defense must be disclosed. This the law requires in the interest of justice. The court did not err in refusing to set aside said judgment and grant a new trial.'

On this same point, our Supreme Court in the case...