Carlisle v. Wilkinson

Worden, J. Complaint by the appellees against the appellant, for the assignment of dower in certain real estate. Judgment by default for the plaintiffs below. At the next term of the Court after the judgment was entered, Carlisle appeared by his attorney, and moved to set aside the judgment. He filed an affidavit, setting out — 92 — matters relied upon as a defense to the plaintiffs’ claim of dower, and stating “that immediately on the service of process on Mm in this case, he went to Lucian Barbour, an attorney at law, of Indianapolis, and of that Court, and employed him to attend to the defense of this case, he having always been the attorney of affiant, and supposed he had so done until after the adjournment of the last term of this Court, when the affiant says he believes the said Barbour neglected it; and affiant says if the judgment which has been rendered against him in this case, is set aside and opened, and he is permitted to file his answer herein, he cán and will establish all the aforesaid facts,” &c. The motion was overruled, and exception taken. At the next term of the Court, and before the expiration of a year from the rendition of the judgment, the motion was again made, and the affidavit of said Lucian Barbowr was filed,' in support of the motion, as well as said affidavit of Carlisle. The affidavit of Barbour states, “ That, in the month of September or October, in the year 1854, Carlisle, the defendant, came to the law-office of the deponent and Albert G. Porter, with whom the deponent was then practicing law in partnership, and advised with them as his attorneys, relative to a suit then recently commenced against him in the Morgan Circuit Court by the plaintiffs, for a dower right in certain mill property situated in Waverly, in Morgan county. The deponent did not then know when the next term of the Court would be held in Morgan county, and so informed Mr. Carlisle; and as both the deponent and said Porter had ceased to practice law in said Morgan Circuit Court, they made no contract with said Carlisle to attend to the case at Martinsville; but they advised with him as to his defense to the action. The deponent further says, that said Carlisle left the office at that time, without anything being said about any employment of any person to attend to the case in Morgan county; and as this deponent and said Porter were attending to said Carlisle’s law business generally in Marion county, the said Carlisle seems to have left the office with — 93 — the expectation that the deponent and said Porter would attend to the case aforesaid, probably not understanding the rule that the firm of Barbour and Porter had adopted, not to attend to law business in any Court out of the county of Marion, without a special employment and undertaking to that effect. The deponent further says, that he has no recollection whether anything was said in said conversation with said Carlisle, as to the rule of this deponent and said Porter that they would not attend Court out of the county of Marion, without a special undertaking to do so, nor does he know that said Carlisle knew of it, nor whether said Carlisle had, at any other time, been involved in any law business out of Marion county.” The motion was again overruled, and exception taken; and the correctness of these rulings is the only question presented by the record. At common law, a default could not be set aside at a term after the one at which judgment was rendered. Blair v. Russell, 1 Ind. R. 516.— Gullett v. Housh, 5 Blackf. 33. The statute relied upon, authorizing such proceeding, is as follows: * * * “ The Court may also, in its discretion, allow a party to file his pleadings' after the time limited therefor; and at any time within one year relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any of the proceedings.” 2 R. S. p. 48, § 99. By the above provision, it will be seen that it was in the “discretion” of the Court below to relieve the party from the judgment, and permit him to plead, or to refuse the application. Where a discretionary power is vested in an inferior Court, there must be a plain case of the abuse of that discretion, in order to justify ’the interference of this Court. Morris v. Graves, 2 Ind. R. 354.—Detro v. The State, 4 id. 200.—Heberd v. Myers, 5 id. 94. The application, made at the first term of the Court after the default, was based solely upon the affidavit of Carlisle. That affidavit, so far as the point now under — 94 — consideration is concerned, simply shows the employment of an attorney to defendí the cause, and a neglect by that attorney to do so. The ruling of the Court on this application, if not clearly right, is far from being clearly wrong. It seems to us that something more than mere neglect on the part of the attorney| should be shown—some good reason or excuse for the failure. The negligence of his attorney is the negligence of the party, and it should be shown to be “excusable”—otherwise, it is not within the terms of the statute. But at the next term of the Courtj the affidavit of Mr. Barbour, the attorney alleged to have been employed, was filed, and the' motion to set aside the default renewed. The affidavit of Mr. Barbour puts an entirely different phase upon the matter. Mr. Barbour did not understand that he was employed at all in the cause, and of course could have been guilty of no negligence in not attending to it. The affidavits, taken together, show about this state of facts:—Carlisle, supposing he had employed Barbour to defend the suit, gave himself no more trouble about it; while Barbour not being employed, or not understanding himself to be employed, of course paid no attention to it whatever, and in the meantime default was entered. It is insisted that the application to set aside the default having been once made and overruled, could not be repeated; that such an application is similar to applications for a change of venue. Millison v. Holmes, 1 Ind. R. 45. It is unnecessary to decide, in the present case, whether the above proposition is, in all respects, correct, as we think the affidavit of Barbour came too late. There is no reason shown why it could not have been procured and filed at the time Carlisle’s was filed. Ordinary diligence, we think, required this to be done. One vacation intervened between the default, and the first application to set it aside, during which, for aught that appears, Mr. Barbour’s affidavit might have been taken, and filed in support of the motion. This, however, was hot done, but the appellant chose to rest the motion on his own affidavit. Having failed in this, he procured the affidavit of Barbour, and — 95 — at the next term, renewed his motion upon the two affidavits. Under the circumstances, we think it clear that error was committed in overruling the motions. R. L. Walpole, D. Wallace, and J. Coburn, for the appellant. D. M’Donald, for the appellees (1). ' Whether or not, had both affidavits been filed on the first application, it would have been error to overrule it; or whether an application can, in any case, be renewed upon an additional showing, having been once made and overruled, are questions which we do not decide. Per Curiam. The judgment is affirmed with costs.