Vail v. Department of Financial Institutions of Indiana

• Decision Date: 20 December 1938
• Docket Number: 15907.
• Citation: 17 N.E.2d 854,106 Ind.App. 39
• Parties: VAIL v. DEPARTMENT OF FINANCIAL INSTITUTIONS OF INDIANA.
• Court: Indiana Appellate Court

17 N.E.2d 854

106 Ind.App. 39

VAIL v. DEPARTMENT OF FINANCIAL INSTITUTIONS OF INDIANA.

No. 15907.

Appellate Court of Indiana, in Banc.

December 20, 1938

Rex S. Emerick, of Kendallville, for appellant.

Frank J. Dunten, of Lagrange, and Atkinson & Sanders, of Auburn, for appellee.

LAYMON Judge.

On the 29th day of November, 1935, at the November term of the Lagrange Circuit Court, appellee recovered a judgment against the National Advertising Service, Inc., Charles R. VailDaisy N. Vail(appellant), and Paul R. Dunten, upon certain promissory notes and for a foreclosure of mortgages given to secure said notes.On February 17, 1936, at the following term of said court, appellant filed her verified petition to be relieved from said judgment and caused summons to be issued and served upon appellee, who was plaintiff in the original action.Appellant, in substance, alleged in her petition that a personal judgment had been rendered against her; that said judgment was rendered through her mistake inadvertence, surprise and excusable neglect; that by an agreement entered into between appellant and appellee's bank, previous to the execution of the mortgages sought to be foreclosed, appellant, in executing said mortgages, was not to become personally liable for the payment of the notes secured by said mortgages; that although the mortgages contained the express provision requiring her to pay said notes, such provision was inserted or left in the form mortgage without her consent and contrary to her agreement with the Lagrange bank; that she did not appear to the action to collect said notes and to foreclose the mortgages, nor defend such action, because of her belief and reliance upon the fact that she had not become personally liable for the payment of said notes, and that therefore no personal judgment would be taken against her; that she did not know nor was she advised, that appellee was seeking a personal judgment against her, nor did she learn of such fact until after the rendition of the judgment; and that she has a meritorious defense, the facts of which are set out in the petition.

The issues joined by this petition, an answer in two paragraphs filed by appellee, and a reply to the second paragraph of answer were submitted to the court for trial, resulting in a finding and judgment denying appellant's petition.It is from this judgment appellant appeals, assigning as error for reversal the action of the trial court in overruling her motion for a new trial.The grounds properly presented in this motion are substantially as follows: The decision of the court is not sustained by sufficient evidence and is contrary to law; alleged error of the court in the rejection of certain testimony.

Counsel for appellee contend that the evidence is not properly in the record.The objections are: (1) That the certificate of the judge authenticating the bill of exceptions is insufficient (2) that the certificate of the judge does not show that the bill of exceptions contains all of the evidence given in the cause; and (3) that there is nothing in the record to show that the transcript of the evidence was ever incorporated into a bill of exceptions.

The procedure of incorporating the bill of exceptions containing the longhand manuscript of the evidence into the record cannot be commended, but upon our examination of the record we find that there has been a substantial compliance with the statute, §§ 2-3106and2-3111Burns 1933, Secs. 459 and 456 Baldwin's 1934.The following authorities sustain us in our view.Daugherty v. Reveal,1913, 54 Ind.App. 71, 102 N.E. 381;Aetna Ins. Co. v. Jones,1917, 64 Ind.App. 251, 115 N.E. 697;Howe v. White,1904, 162 Ind. 74, 69 N.E. 684.

Appellee, in support of its third objection, supra, has cited the case of Rector v. Druley,1909, 172 Ind. 332, 88 N.E. 602.There the record disclosed that immediately following the reporter's certificate, the transcript recites: "The appellant, Dick Rector, tenders this his bill of exceptions, and prays that the same may be signed, sealed and made a part of the record, this June 25, 1908."Underneath this statement appears the name of the trial judge.Our Supreme Court said [page 603]: "There is nothing to show that this transcript of the evidence was ever incorporated into a bill of exceptions, as required by section 657Burns' Ann.St.1908 [Acts 1897, p. 244]."

In the instant case the certificate of the judge to the bill of exceptions sufficiently discloses that the transcript of the evidence was incorporated into a bill of exceptions.This certificate was also preceded by the statement, "And this was all the evidence given in the cause."The evidence is properly before us.

During the trial on appellant's petition to be relieved of the judgment, the record in the original action was admitted into evidence.This record disclosed that upon the filing of the complaint summons was issued for all defendants therein, returnable September 2, 1935; that the defendants, National Advertising Service, Inc., Charles R. Vail, and this appellant, Daisy N. Vail, appeared by their counsel, Herman Haskins, who, for and on behalf of said defendants, filed an answer in general denial.Upon the issues thus joined by the complaint and answer, the cause went to trial, resulting in a judgment in favor of appellee and against this appellant and the other defendants thereto.

Obviously, from the facts pleaded, the issues presented, and the relief sought in her petition, appellant has attempted to proceed and obtain relief pursuant to and as authorized by § 2-1068, Burns' 1933, Sec. 173, Baldwin's 1934, which in part provides: "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 an original action, within two (2) years from and after the date of the judgment.[Acts 1881(Spec. Sess.), ch. 38, § 135, p. 240;1921, ch. 115, § 1, p. 277.]"This provision of the statute contemplates the filing of a complaint or motion in writing.

If the application is made at a subsequent term of the court than that at which the judgment was entered, it is in the nature of a new proceeding.The complaining party should therefore proceed by a pleading in the nature of a complaint and, in the absence of an appearance, notice is required.Johnson v. First Nat. Bank, etc.,1917, 65 Ind.App. 629, 117 N.E. 676;Globe Mining Co. v. Oak Ridge Coal Co.,1922, 79 Ind.App. 76, 134 N.E. 508;National Life Ins Co. v. Wheeler,1922, 79 Ind.App. 184, 137 N.E. 529.And should it appear that the application was filed under the title of the cause in which the original...