Swartz v. Swartz, 18159

• Decision Date: 28 November 1951
• Docket Number: No. 18159,18159
• Citation: 101 N.E.2d 822,121 Ind.App. 635
• Parties: SWARTZ v. SWARTZ.
• Court: Indiana Appellate Court

Page 822

101 N.E.2d 822

121 Ind.App. 635

SWARTZ v. SWARTZ.

No. 18159.

Appellate Court of Indiana, in Banc.

Nov. 28, 1951.

Mox G. Ruge, Chesterton, for appellant.

Ryan, Chester & Clifford, Valparaiso, for appellee.

ACHOR, Judge.

This is an appeal from an adverse judgment in which the trial court refused to vacate and set aside a decree taken by default, by which decree the court reopened a divorce judgment after term and reset the same for redetermination as to the property rights of the parties. The essential facts in the case are as follows:

On December 27, 1947, the Superior Court of Porter County made a finding and decree of divorce as to the parties. The pertinent parts of the decree are as follows:

'* * * and the court being duly advised in the premises finds for the plaintiff on her amended complaint that she is entitled to a decree of absolute divorce from the defendant, * * * that the plaintiff and the defendant are the owners in fee simple, as tenants by the entireties, of two (2) parcels of real property located in Porter County, Indiana, and described as follows, to-wit:

'Parcel Number 1. (description

'Parcel Number 2. (description

'The court finds that it is necessary to adjust the respective property rights and alimony claims of the respective parties hereto, and from the evidence the court finds that the plaintiff should be entitled to have and retain as her own separate property the real estate hereinabove described as parcel number 1, and that the defendant and cross-complainant should be entitled to have and receive as his own separate property that real estate hereinabove described as parcel number 2, and the court further finds that the plaintiff is entitled to receive from the defendant an alimony judgment in the amount of Two Thousand ($2000.00) Dollars by way of equalization in connection with the division of the said properties.

'It is therefore considered, adjudged, and decreed by the court that plaintiff have, and she is hereby granted, a decree of absolute divorce from the defendant.

'It is further adjudged and decreed by the court that within ten (10) days from the date of this decree the plaintiff shall convey to the defendant the premises hereinabove described in the findings of the court as parcel number 2. And that the defendant within said ten-(10) day period shall convey to the plaintiff the premises above described as parcel number 1.

'It is further adjudged by the court that the plaintiff be and she is hereby given a judgment for alimony against the defendant in the amount of Two Thousand ($2000.00) Dollars by way of an adjustment in connection with the division of said real property. It is further adjudged by the court that said sum of alimony shall be paid in cash by the defendant into the Clerk's Office of this court contemporaneously with the delivery of said deeds.

'It is adjudged further by the court that if either or both of the parties hereto do not make such conveyances, or if they or either of them refuse to do so, within said period of ten (10) days from date hereof, then in such event, Englebert Zimmerman, Jr., of Valparaiso is appointed as the commissioner of this court to make said conveyances as herein ordered as commissioner of the court, and said commissioner shall thereby be empowered to convey the full, entire, and complete interests of the respective parties to each other in accordance with this judgment.

'It is further adjudged and decreed by the court that at the time of the delivery of said conveyances the abstracts of title covering said respective parcels shall be delivered over to the party acquiring the title thereto. If conveyances are not made by the parties voluntarily then and in such event the commissioner shall execute such deeds and report the same to this court for the court's approval and the costs of this action are taxed to the defendant other than the costs of the commissioner, if any, and the matter of the allocation of such costs is taken under advisement.'

The parties did not execute reciprocal conveyances as prescribed in the judgment of the court. Appellant initiated proceedings for an appeal of the judgment and Englebert Zimmerman, Jr., appointed as commissioner, refused to make conveyance.

Pending such appellate proceedings, the parcel of real estate assigned to appellee was burned. Appellant did not perfect her appeal and thereafter demanded performance according to the judgment of the court as entered. Thereafter, on June 1, 1948, appellee filed his 'Petition to Amend Judgment, etc.,' wherein he prayed that the original divorce decree entered December 27, 1947 be reopened and modified as to the property rights of the parties. Hearing on said petition was first set for March 25, 1950, at which time neither the appellant nor her attorney appeared. The cause was reset June 24, 1950, on which date the cause was heard in the absence of the appellant and finding and judgment was made by the court, by which the original judgment for divorce was reopened for further determination as to the property rights of the parties.

After reciting the circumstances of appellant's failure and refusal to make conveyance according to the specification of the divorce decree and of the subsequent loss of one of the properties by fire, the remaining part of the finding and the judgment of the court is as follows:

'The court further finds that said order and decree of December 27, 1947, was not a complete and final judgment but that the cause remained in fieri, and that this court, in order to do equity for the parties, should now vacate and set aside all those parts and portions of the decree of December 27, 1947, having to do with the division of the property of the parties and that the same should be now reconsidered by the court and all the property of the parties, held by them either separately in their own individual names or as tenants by the entireties, should be divided, adjusted or otherwise distributed in connection with the decree of divorce heretofore granted herein.

'It Is Therefore Considered, Adjudged and Decreed by the court that the decree of divorce granted to the plaintiff on her amended complaint in this cause on December 27, 1947, be confirmed and be not disturbed or set aside. That, however, the other parts and portions of said decree, are hereby vacated and set aside insofar as they concern the ownership, division and/or distribution of the property and the property rights of the parties.

'It Is Adjudged and Decreed further that the pending motion of the defendant be and the same is hereby granted and the court at a further hearing shall and will hear evidence touching upon the property rights of the plaintiff and the defendant in order that a just and equitable division may be made to the parties.'

Thereafter, on September 7, 1950, appellant filed her 'Verified Motion to Set Aside the Order and Judgment of the Court Entered Herein on June 24, 1950' and filed her answer to appellee's prior Petition to Amend the divorce decree of December 27, 1947. To appellant's aforesaid 'Verified Motion to Set Aside the Order of June 24, 1950,' the appellee filed his answer by way of a Counter Affidavit and trial was had on these issues September 30, 1950, on which date the court found against the appellant and denied her 'Verified Motion to Vacate the Order of June 24, 1950.'

Appellant's assignment of errors avers that the court erred in finding against her on her Verified Motion to Vacate the Judgment of June 24, 1950. It is upon this issue that the case is before us on appeal. Appellant's Verified Motion to Vacate the Order of June 24, 1950 was grounded upon § 2-1068, Burns 1946 Repl., which provides as follows: 'The court shall relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, on complaint filed and notice issued, as in original actions within two (2) years from and after the date of the judgment, * * *.'

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 v. Killen (1925), 196 Ind. 570, 148 N.E. 195; Nash v. Cars (1883), 92 Ind. 216; Nord v. Marty [1887], 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.

* * *

* * *

'Is 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, 435, 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; U. S. 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...