Wells v. Bradley

• Decision Date: 07 January 1892
• Citation: 29 N.E. 572,3 Ind.App. 278
• Parties: WELLS et al. v. BRADLEY et al.
• Court: Indiana Appellate Court

3 Ind.App. 278

29 N.E. 572

WELLS et al.

v.BRADLEY et al.

Appellate Court of Indiana.

Jan. 7, 1892.

Appeal from circuit court, White county; A. W. REYNOLDS, Judge.

Action by William H. Wells and another against Bradley, Holton & Co., to set aside a judgment. Judgment for defendants. Plaintiffs appeal. Affirmed.

T. F. Palmer, for appellants. Sellers & Uhl, for appellees.

REINHARD, J.

This was an application, under section 396, Rev. St. 1881, to be relieved from a judgment by default. The record discloses that the action was commenced by the appellees against the appellants in the Jasper circuit court at its June term, 1890, for the recovery of personal property. There was personal service upon all the defendants. Upon application of the appellees, the venue of the cause was changed to the White circuit court, where, upon the fourth day of its September term, 1890, the defendants were ruled to answer on the next day, they having previously, through their attorneys, entered an appearance. On the fifth day of the term, the defendants having failed to answer, as previously ruled, were called and defaulted, and on the ninth day of said term, four days after the default was taken, the cause was tried in the absence of the defendants and their attorneys, resulting in a finding and judgment in favor of the appellees for the property described in the complaint, or, upon failure to turn over such property to appellees, the appellants to pay its value, assessed at $510, to the appellees. On the 23d day of September, 1890, which was 14 days after the rendition of the judgment, but 2 weeks before the expiration of the term, the appellants filed their motion to set aside the default and judgment, and in support thereof the affidavits of William H. Wells, one of the appellants, and S. P. Thompson, of counsel for the appellants. The appellees thereupon filed counter-affidavits by Emory B. Sellers, one of their attorneys, and E. P. Hammond, who had been one of their attorneys in the cause up to the time of the change of venue. The appellants, in answer to the counter-affidavits, filed an additional affidavit of S. P. Thompson. Upon the showing thus made, the court, upon due consideration, refused to set aside the default and judgment, and hence this appeal.

There seems to be no question but that the affidavit of the defendant Wells states a sufficient defense, which is proposed to be set up to the action in case the default and judgment are set aside; and the only question that remains is as to the sufficiency of the affidavits as an excuse for suffering the default. We have given all the affidavits a careful examination, and, while they contain evidence tending to prove that the neglect of the appellant was excusable, there is also evidence to the effect that such is not the case. The...