Ziegler v. Funkhouser

Citation42 Ind.App. 428, 85 N.E. 984
Case DateOctober 28, 1908
CourtCourt of Appeals of Indiana


Appeal from Superior Court, Vanderburgh County; Alexander Gilchrist, Judge.

Action by Albert W. Funkhouser and others against Mary Ziegler and another. From a judgment refusing to set aside a default judgment against defendants, Mary Ziegler appeals. Reversed, with instructions.Phil C. Gould and C. B. Harris, for appellant. Geo. A. Cunningham and Philip W. Frey, for appellees.


The appellees recovered judgment by default against the appellant and her husband, Jacob Ziegler, in the court below on the 3d day of January, 1906. Judgment was rendered upon the complaint in two paragraphs, the first of which averred that on the 9th day of November, 1906, the appellant and her codefendant entered into a contract in writing with the appellees, by which appellees were employed to defend certain litigation pending in the court below against said Jacob Ziegler, and for these “said services done and to be done” appellant agreed to pay appellees $1,000, $500 in cash and $500 in notes satisfactory to appellees, and judgment was prayed on this paragraph of the complaint for $500. The second paragraph was based on a promissory note purporting to have been executed on the same day by appellant and her husband to appellees for $500, payable in 30 days. The action was begun on the 19th day of the following month, and personal service had on appellant on the same day. On the 24th day of February, following, and during the same term of court, the appellant appeared and filed a written motion asking to be relieved from said judgment, under the provisions of section 405, Burns' Ann. St. 1908, setting forth in her petition that she resided six miles from the county seat, where the court in which the action was pending was held; that she was a married woman, unable to read and write, and that she did not understand the necessity of an appearance in person or by counsel to said action; that she was in a far-advanced state of pregnancy, and on that account was unable to appear in court or obtain counsel to appear for her, and that she had a valid defense to plaintiffs' action; that she did not sign the contract or notes sued on, and that she never authorized any other person to sign the same for her; that she never employed appellees, or either of them, to represent her in any litigation; and that they never performed any service whatever for her. The application to set aside the judgment was heard at the following term of court, when the application was refused.

On appeal the errors assigned are: (1) That the first paragraph of the complaint does not state facts sufficient to constitute a cause of action. (2) That the second paragraph of the complaint does not state facts sufficient to constitute a cause of action. (3) That the court erred in overruling appellant's motion to set aside the judgment. Under repeated decisions, neither the first nor second assignments of error present any question to this court. Pittsburgh, etc., Co. v. Hunt, 71 Ind. 229;Smith v. Freeman, 71 Ind. 85;Higgins v. Kendall, 73 Ind. 522;McCallister v. Mount, 73 Ind. 559;Trammel v. Chipman, 74 Ind. 474;Johnston Glass Co. v. Lucas, 34 Ind. App. 419, 72 N. E. 1102.

The third error properly presents for review here the action of the court below in overruling appellant's motion to be relieved from the judgment taken against her by default. It is the policy of the law that all suits in court should be determined on their merits, and that no advantage shall be obtained by one party to the litigation over the other by reason of any mistake, excusable neglect, or casualty that prevents one of the parties from appearing in court to present his claim or defense, and statutes designed to insure parties litigant a full and fair hearing of their causes in court are to be liberally construed to effectuate this policy. The application to be relieved from the judgment, and the proof offered under it, show...

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3 cases
  • Jordan ex rel. Jordan v. Deery, 75S05-0106-CV-310.
    • United States
    • Indiana Supreme Court of Indiana
    • 22 Noviembre 2002
    ...is entitled to be personally present in court when a trial is held in which he, or she, is a party of record."); Ziegler v. Funkhouser, 42 Ind.App. 428, 85 N.E. 984, 986 (1908) ("It is the right of every party litigant to be present in person in court upon the trial of his own case...."). I......
  • Duncan v. Binford, 271A33
    • United States
    • Indiana Court of Appeals of Indiana
    • 22 Febrero 1972
    ...the exercise of ordinary judgment such as to amount to excusable neglect for his failure to defend the action. In Ziegler v. Funkhouser (1908), 42 Ind.App. 428, 85 N.E. 984, it was held to be excusable neglect where a woman was sick at the time she was served and physically unable to appear......
  • L.B. v. State, 71A03-9511-JV-391
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 Diciembre 1996
    ...to assist in or comprehend proceedings, due process rights may be adequately protected by counsel), quoting Ziegler v. Funkhouser, 42 Ind.App. 428, 432, 85 N.E. 984, 986 (1908). Further, it is noteworthy that criminal defendants' right of confrontation requires their presence unless a volun......

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