Nietert v. Trentman

Niblack, J. This was a proceeding upon a complaint to have a default set aside and to be relieved from a judgment, under section 99, 2 R. S. 1876, p. 82; see, also, R. S. 1881, section 396. The' complaint was filed on the 19th day of April, 1875, and some proceedings, with both parties before the court, were had upon it, but, apparently owing to the loss of the original papers, further proceedings were, after a time, suspended until the 21st day of February, 1885, when a substituted complaint was filed. This substituted complaint avers that, on the 5th day of February, 1875, August C. [391] Trentman, as the surviving partner of the firm of B. Trent-man & Son, filed his complaint in the Allen Circuit Court against one Henry Nietert and the appellant, Christian Nietert, upon a promissory note for $263.10, purporting to have been executed by the said Henry Nietert and the appellant, and upon an open account charging a joint indebtedness against the same persons in the sum of $626.31; that •on the same day a summons was issued upon that complaint and returned by the sheriff “served by reading to Henry Nietert and Christian Nietert, this February 5th, 1875; ” that ■afterwards, on the 15th day of February, 1875,. a default was entered against the said Henry Nietert and the appellant, because of their failure to appear to the action, and on the next day judgment was rendered against them upon the note for $315.70 and upon the account for $626.31; that the summons issued in said action was never really served upon him, the appellant; that he never received notice of any kind or from any source of the pendency of that action, or of the rendition of said judgment until an execution was issued and served upon him; that the appellant was only surety upon the note sued on, and had fully paid that part of the judgment which rested upon the note before the commencement of this proceeding; that he had and still has a good and meritorious defence to so much of the action as was based upon the open account, in this, that he was never liable for any part or item of that account; that the goods •charged for in its several items were sold solely and only to his co-defendant Henry Nietert, to whom alone credit was at the time given; that by reason of the facts herein charged the appellant’s apparent neglect in not appearing to the action and setting up his defence was excusable. Wherefore the appellant demands that the default and judgment be set ■aside, and that he be permitted to make his defence to so much of the.action as involves his liability upon the open account. Henry Nietert was made a co-respondent with Trentman to answer as to the matters charged as above. [392] Trentman demurred separately to the complaint, and, his-demurrer being sustained, final judgment was rendered against the appellant upon demurrer. The case of Nichols v. Nichols, 96 Ind. 433, is relied upon by counsel for Trentman as fully sustaining the decision of the circuit court appealed from in this case; also as practically overruling the case of Hite v. Fisher, 76 Ind. 231, and as very much limiting as a precedent the case of Smith v. Noe, 30 Ind. 117. The case thus relied on does seemingly place a less liberal construction upon the statute authorizing relief from judgments in certain cases than the two preceding eases referred to, but we can not accord to that case so broad an application as is claimed for it on Trentman’s behalf. It does reassert in very strong and comprehensive terms the doctrine that, as a general rule, where a sheriff is, in any particular respect, authorized to make a return of his proceedings, the matters returned by him can not, as between the parties to the action, be controverted by extrinsic evidence, but is conclusive upon them, except in an action against the sheriff for a false return, but so far as that case may be construed as holding that a party, upon whom a summons has been returned as served, may not, under some circumstances, be permitted to.show that the summons was not in fact served upon him as an excuse-for not appearing in the action in time to save a default, the-holding in that respect ought, we think, to be limited to the facts of that particular case, and not treated as one of general application. As a rule of general application, we are inclined rather to follow the conclusion reached in the case of Hite v. Fisher, supra, as to what may be shown as an excuse for not promptly appearing in obedience to a summons. That case impresses us as being more in accord with the spirit of the statute under which this proceeding was instituted, than the case of Nichols v. Nichols, supra, would be with the construction placed upon it which counsel for Trentman seek to have given to it. [393] Filed April 11, 1885. It must be borne in mind that the section of the statute in question is the last expression of the legislative will on the subject of the non-conclusiveness of defaults and judgments in certain cases. We assume, therefore, that this older rule as to the conclusiveness of sheriffs’ returns ought to be enforced in the- light of that section of the statute. If a default may be taken against a defendant who has not been really served with a summons, upon a false return of the sheriff, and if such want of actual service of the summons can not be urged as a reason for setting aside the default, then injuries may be inflicted upon defendants in many cases for which an action against the sheriff would afford no adequate remedy. The object of this proceeding is neither to set aside the service of the summons, nor to question .the jurisdiction which the circuit court acquired over the appellant in virtue of the sheriff’s return, but is simply and only to have a default taken against the appellant during the progress of the cause set aside upon the ground that up to that time he had no actual knowledge of the pendency of the action against him, and that hence his neglect in not appearing in 'time to make his defence was excusable. The facts averred constitute what appears to us to be a well sustained case of excusable neglect on the part of the appellant. As a practical question, we know of no better excuse for the non-appearance of a party at the proper time than that he had never in anyway received actual notice of the pendency of the suit. Bertline v. Bauer, 25 Wis. 486 ; 3 Wait Pr. 665. See, also, the case of Zerger v. Flattery, 83 Ind. 399. The judgment is reversed, with costs, and the cause remanded for further proceedings.