Chicago & Indianapolis Air Line Railway Co. v. Johnston

Elliott, J. The summons issued in this case named the-appellant, who was the defendant below, The Chicago and Indianapolis Air Line Railroad Company. On appellee’s motion default was entered and judgment taken on the 7th day of June, 1881; on the 14th day of that month, and at the same term, the judgment and default were set aside and theappellee permitted to amend the summons and return by inserting, as the name of the defendant, The Chicago and Indianapolis Air Line Railway Company, and the defendant was. again defaulted and judgment entered in appellee’s favor. We think there is no error warranting a reversal. The-power of the court to set aside a default during the term is-undoubted. Burnside v. Ennis, 43 Ind. 411; McClellan v. Binkley, 78 Ind. 503. The mistake in using the word “road ” instead of “way,” in the writ, was one which might be cured by amendment, and no-error was committed in permitting the amendment of the writ and service. The proper representatives of the appellant are affirmatively shown to have had due notice of the action, and there-was, therefore, full opportunity to make defence. It would, as it seems to us, be unjust to permit the appellant to allow the action to go undefended and then secure a reversal, without taking any steps in the trial court, because of the error-in giving its name in the complaint and summons. Judgment affirmed. Hammond, J., did not take part in the decision of this cause.