Hannah v. Indiana Central Railway Co.

Per Curiam. The railway company had an action pending against the appellant in the Madison Circuit Court, which was taken by venue to the Delaware Circuit Court [432] In the latter Court judgment was taken for want of appearance by the defendant. This was an application to set aside the judgment thus taken on account of surprise, &e. The application was refused. The petition is long, referring to several affidavits, and making them a part thereof, and need not be here set out. It sets up a meritorious defence to the action, and shows that the petitioner was, as we think, excusably ignorant of the fact that the cause had been sent to Delatoctre county, supposing it had been sent to another county; hence, the judgment for want of appearance. ¥e think such a showing was made as entitled the party to have the judgment set aside, and be permitted to try the cause on its merits. Moses Jenkinson, for the appellants. Newcombe § Tarhington, for the appellee. The judgment is reversed, with costs, and the cause remanded. (1) Footnotes [(1)] This cause was pending in the Madison Circuit Court on a change of venue from the Hancock Circuit Court; and whilst so pending, Jerusha Hannah moved the Court, by John Davis, as her attorney, for a change of the venue again, from the Madison Circuit Court to some other, and the change was granted to the Delaware Circuit Court. After judgment against her there by default, and at the next term after such default, upon affidavits, notice and motion, Jerusha Hamnah moved the Court to be relieved against said judgment, on the ground of surprise and excusable neglect, alleging in the affidavits sufficient merits in her defence, and that she had no knowledge of the change of the venue of said cause to the Delawme Circuit Court; and that Robert L. Walpole was her sole counsel in said cause, and that he had informed her that the venue had been changed to the Hamilton Circuit Court, which she believed to be true, and that she was preparing to make her defence there. Walpole stated in his affidavit, that he had been employed as her attorney, and through John Davis, as his friend and agent, he made the application for a change from the Madison Circuit Court, and was informed by him afterwards [433] that the change was granted to the Hamilton Circuit Court, and so informed his client. Davis stated in his affidavit, that he made such application as a matter of courtesy for Mr. Walpole, and, at the time the change was granted, in some way got the impression it had been granted to the Hamilton Circuit Court, and so informed Mr. Walpole. The Delaware Circuit Court convened some time before the Hamilton Circuit Court. These are the material facts in the application to set aside the default.