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82 Ind. 183

Williams v. Kessler

Indiana Supreme Court

Decided May 15, 1882

Indiana Supreme Court · decided 1882-05-15

<p>Replevin. — Judgment of Return of Property. — Pleadmg.—Practice.—A cross complaint or answer specially praying a return of the property to the defendant, in an action of replevin, is not necessary to entitle him to judgment for such return, the general denial being enough.</p> <p>Same. — Default.—Affidavit to Set Aside. — The affidavit of a plaintiff in replevin to set aside a default and judgment against him rendered thereon, is insufficient if it do not show the nature of his cause of action. A general statement, that “ he has a good cause of action, and believes he will recover judgment,” is insufficient, and the court can not, on motion to set aside the default, take notice of the affidavit for the writ.</p> <p>Same. — Excusable Neglect. — A railroad accident caused the loss of a day to a party enroute to.court, notwithstanding which he could have reached the place in time for trial, but for the fact that he stopped to get a necessary witness, with whom he had arranged to meet his train of the day-before and go with him, and who had met that train, and by reason of the delay he was defaulted, and judgment rendered against him.</p> <p>Held, that his neglect was not excusable.</p>

Relies on Frost v. Dodge · Goldsberry v. Carter

Good law ✅— No negative treatment on recordhow we know

Decided 1882-05-15

How this case has been cited

Cited by 7 later decisions — most recently February 1914

7 state decisions

301882189019001910decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On Petition for a Rehearing.

Franklin, C.

¶2Appellant, in his petition for a rehearing, insists that the court erred in holding that the affidavit, upon *189which the motion to set aside the default was made in the court below, was insufficient.

¶3The only allegation contained in the affidavit, in relation to the nature of the cause of action, is the following: “ He further says that he has a good cause of action herein, and believes he is entitled to and will recover judgment as prayed for in his complaint in said action.”

¶4This, we think, is not sufficient.

¶5In the case of Goldsberry v. Carter, 28 Ind. 59, this court held as follows: “ The affidavit is defective in not stating the nature of the defence. Frost et al. v. Dodge et al., 15 Ind. 139, and the authorities therein cited. The default can only be set aside to let in a defence to the merits, and the nature of the defence must be shown ; it is not enough to state that the defendant believes he has a meritorious defence to the action.”

¶6We see no reason why the rule which has been applied to defendants, in relation to the nature of their defences, should not be equally applied to plaintiffs, in relation to the nature of their causes of action.

¶7But it is insisted by appellant that the nature of his cause of action was set forth in his affidavit in the original replevin suit. This may be true, but that affidavit constitutes no part of the affidavit or proceedings to set aside the default, and can not be used in connection therewith, uziless it had been referred to and made a part of the latter affidavit, which is in no way attempted to he done. For this omission, we think the affidavit to set aside the default was defective, and the petition for a rehearing should be overruled.

¶8Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the petition for a rehearing be and the same is overruled.

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