Aetna Securities Co. v. Sickels , 120 Ind. App. 300 ( 1949 )

DISSENTING OPINION I cannot agree with the majority opinion in this case. The appellants herein had originally successfully defended the action in the lower court. On appeal by reason of their failure to file a brief, the Supreme Court reversed their judgment on the grounds that the Sickels' brief made a prima facie showing of error.Sickels, et al. v. Aetna Securities Co., et al. (1942),220 Ind. 347, 41 N.E.2d 947.

The mandate of the Supreme Court in the original case was: "The Morgan Circuit Court will set aside its order granting a new trial on the issue formed on the amended plea in abatement and will sustain the appellants' motion for a new trial as to appellees, Aetna Securities Company and Xen McNair." The trial court never took steps to obey this mandate as to setting aside its previous order but instead on September 27, 1943, proceeded to call and default the appellants' and rendered judgment in excess of $61,000.

At the time this default judgment was rendered the appellants had appeared and had filed an answer in the lower court. Their attorneys of record had asked leave and had been granted permission by the court to withdraw their appearance for the appellants. The testimony of the clerk below was that it was the invariable practice and custom of the trial court to notify attorneys of all settings and if there were no attorneys or the attorneys had withdrawn to send similar notices to the parties and the forms of notice were introduced. In addition, the appellant McNair was told by one of his attorneys who had been granted leave to withdraw that McNair would receive notice of any future steps in the Morgan Circuit Court. No notice was ever sent to the appellants, in spite of the fact their personal appearance had never been withdrawn, and immediately upon their learning of the existence of the judgment they went to Martinsville, and upon learning there was a judgment against them filed the proceedings below upon which this appeal is based seeking relief from this judgment.

All doubts as to an application to set aside a default judgment should be resolved in favor of the appellant. Christ v.Jovanoff (1926), 84 Ind. App. 676, 151 N.E. 26; Masten v.Indiana Car Co. (1900), 25 Ind. App. 175, 57 N.E. 148.

It is also the policy of the law to try cases on their merits and to give litigants their day in court. Neat v. Topp (1911), 49 Ind. App. 512, 97 N.E. 578; Gary Hobart, etc., Co. v. Earle (1922), 78 Ind. App. 412, 135 N.E. 798.

It is true that there was a considerable lapse of time between the date of the judgment which was rendered on September 27, 1943 and on August 9, 1948, when appellants claim they first learned of the judgment by reason of the issuance of execution on same. However, the passage of time after the rendition of a judgment never amounts to laches until the existence of the judgment is known. "But however great the lapse of time, laches is not imputable to a party who has no knowledge of a judgment against him; it is only required of him that he be diligent in seeking relief after he has notice of it." 34 C.J. 265.

An Indiana trial court of record has an inherent power independently of statute to grant relief against a default judgment without regard to the passage of time.Staggs v. Wright (1948), 118 Ind. App. 247, 76 N.E.2d 588; 2 Lowe's Rev., Works' Practice, p. 188; I Watson's Rev., Work'sPractice, p. 679; Hitt v. Carr (1921), 77 Ind. App. 488, 130 N.E. 1; Walker v. Heller (1883), 90 Ind. 198; Krill v.Carlson (1920), 74 Ind. App. 47, 128 N.E. 612; Cory v.Howard (1929), 88 Ind. App. 503, 164 N.E. 639.

The appellants, after having a final judgment in their favor, and after their attorneys of record had asked and been granted leave to withdraw, five years later learned that instead of having a judgment in their favor, that the trial court without notice to them and without vacating the previous judgment, had reconsidered the matter as a default and rendered a judgment in favor of the other side.

Furthermore, I wish to point out that while the mandate of the Supreme Court directed the trial court to sustain appellants' motion for a new trial as to appellees, Aetna Securities Company and Xen L. McNair, appellants herein, an examination of the record shows that in the original proceeding the court withdrew the submission of the cause as to these appellants and discharged the jury, and therefore, the appellants did not have an original trial in the first instance on the merits.

Considering all of the circumstances including those recited in the majority opinion, it seems to us that the conclusion is inescapable that the trial court abused its discretion in refusing to grant appellants equitable relief and its default judgment of September 27, 1943, and that this cause should be reversed.

Royse, J., concurs in this dissent.

NOTE. — Reported in 88 N.E.2d 794.