Masten v. Indiana Car, etc., Co.

tion thereof by him? If in the pleading it were stated that the appellant negligently did the act in question, or that the appellant by its servant negligently did it, we need not and do not decide how such allegation might be proved.

Without anticipating what would be a proper conclusion under the evidence showing a particular capacity in which the servant in question was employed by the appellant, we think it not allowable to relax the proper strictness of the law of pleading so far as to hold that the complaint before us sufficiently showed that the servant in rear of the freight train, as to the action wherein he is alleged to have been negligent, which was the proximate cause of the injury, was acting within the scope of his employment.

The judgment is reversed, and the cause is remanded, with instruction to sustain the demurrer to the complaint.

MASTEN V. THE INDIANA CAR AND FOUNDRY COMPANY. [No. 3,052. Filed April 18, 1900. Rehearing denied June 22, 1900.] APPEAL AND ERROR.-Waiver.-Default.-Where a proceeding to set aside a default was disposed of on its merits without objection to the form of the proceeding, no such question can be raised on appeal. p. 177. SAME.-Default.-Pleading.-Where an application to set aside a default is not treated as a pleading in the trial court it cannot be thus questioned on appeal. p. 178.

PLEADING.-Judgment.-Default.-In a proceeding, under $399 Burns 1894, to set aside a default the original cause of action need not be set out, but merely the nature of the action and defense. p. 179. EVIDENCE.-Affidavits.-Judgment.-Default.-Where in a proceeding to set aside a judgment rendered by default defendant filed affidavits tending to show excusable neglect, mistake and inadvertence, and plaintiff filed counter-affidavits in conflict with the showing made by them, the rule applicable to oral evidence applies, and the conclusion of the court thereon will not be disturbed if it is supported by any evidence. pp. 179-181.

OFFICERS.-Attorney-General.-There is no constitutional or statutory inhibition against the Attorney-General practicing law. p. 181.

Masten v. Indiana Car, etc., Co.

APPEAL AND ERROR.-Judgment.-Default.-The action of the court in setting aside a judgment rendered by default upon application and affidavits tending to show that the default resulted from excusable neglect and inadvertence will not be disturbed on appeal unless an abuse of discretion on the part of the trial court is shown. pp. 182-187.

From the Marion Superior Court. Affirmed.

John B. Sherwood, for appellant.

W. A. Ketcham and F. E. Matson, for appellee.

ROBINSON, J.-On May 29, 1896, at the May term of the Marion Superior Court, appellant obtained a judgment by default against appellee. At the next term, June 8, 1896, appellee moved to set aside the default and vacate the judgment, and with its motion filed the affidavit of its attorney, Mr. Ketcham, as to excusable neglect, mistake and inadvertence, and the affidavit of its general manager, Mr. Frazier, as to a meritorious defense to the original suit. Appellant appeared and filed the counter-affidavit of his attorney, Mr. Sherwood, in denial of appellee's right to the relief asked. Upon the hearing the default was set aside and appellee permitted to answer; and an answer in general denial was then filed. Time was given to file a bill of exceptions, which was done. An appeal to this court, from the order setting aside the default and vacating the judg ment, was dismissed March 30, 1898. Masten v. Indiana Car, etc., Co., 19 Ind. App. 633.

The record then recites that May 24, 1898, "Come the parties, and this cause being called for trial and the plaintiff declining and refusing to introduce any evidence, the court finds for the defendants. It is therefore considered, adjudged, and decreed by the court that the plaintiff take nothing by this action and that the defendant recover of the plaintiff its costs, taxed at dollars."

Appellant assigns as error that appellee's motion and the the affidavits in its support do not state facts sufficient to constitute a cause of action, that the court erred in sustaining the defendant's motion to set aside the default and judg

Masten v. Indiana Car, etc., Co.

ment, and that the court erred in rendering final judgment for the appellee.

The motion and the affidavits and the counter-affidavit are entitled as of the original case. As no objection was made to this in the court below and as the matter was disposed of upon its merits without objection to the form of the proceedings, no such question can be raised now, even conceding, without deciding, that it might have been successfully raised below. Beatty v. O'Connor, 106 Ind. 81.

To the statute, §644 Burns 1894, §632 Horner 1897, permitting appeals from final judgments only, there are certain exceptions. §658 Burns 1894, §646 Horner 1897. It was held that the former appeal, Masten v. Indiana Car, etc., Co., 19 Ind. App. 633, did not come within the exceptions, and that the judgment from which an appeal may be taken must make a final disposition of the cause.

If the motion and affidavits are to be disposed of "in a summary manner upon the affidavit and the facts within the knowledge of the judge", Ratliff v. Baldwin, 29 Ind. 16, we do not think the statute contemplates anything in the way of pleadings. A counter-affidavit is not an answer in the sense of pleading. The motion and affidavits do not attempt to state any cause of action. The whole purpose of the proceeding is not that the judgment may be adjudged null and void, but that the default may be set aside and the party be permitted to interpose a defense to the action. The moving party is not asking for a judgment, and a judgment of any kind in his favor does not necessarily follow if he is successful. A demurrer to the motion and affidavits for want of facts would have amounted simply to a submission of the motion and affidavits to the court for a hearing on the facts therein set out.

In the case at bar, the proceeding was a motion supported by two affidavits. Appellant appeared in response to notice, filed a counter-affidavit, and upon these the matter was submitted and determined.

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Masten v. Indiana Car, etc., Co.

As said by the court in Brumbaugh v. Stockman, 83 Ind. 583: "Whether the proceeding be by complaint or motion, it must be determined in a summary manner; no pleadings are contemplated beyond the complaint or motion. Buck v. Havens, 40 Ind. 221; Lake v. Jones, 49 Ind. 497; Nord v. Marty, 56 Ind. 531. Upon a complaint, the evidence may consist of affidavits, depositions or oral testimony, but a motion is still properly heard on affidavits only, although in the discretion of the court oral testimony may be heard. also; counter-affidavits being admissible on the point on which relief is sought, but not as to the cause of action."

Had a demurrer been filed, the sufficiency of the motion and affidavits might have been tested. Thompson v. Harlow, 150 Ind. 450; Durre v. Brown, 7 Ind. App. 127.

The motion and affidavits must be considered as a whole. It does not appear that they were submitted to the court as a pleading. Appellant appeared and filed a counter-affidavit, submitted the issues presented by the several affidavits, not as a matter of pleading, but of evidence. Whether the statute does or does not contemplate any pleading "beyond the complaint or motion", as indicated by the above authorities, we think it not an unsafe rule to hold that if such an application is not treated as a pleading in the trial court, it can not be thus questioned on appeal. As the questions argued may all be properly considered under the second assignment, it is not necessary further to notice the first.

It is argued that the affidavit of Mr. Ketcham shows that when appellee was served with summons, it gave no attention to defending the action. In answer to this it is enough to say that the affidavit clearly shows that when the default was taken Mr. Ketcham represented appellee as its attorney in the matter in controversy and that the relation of attorney and client existed. From the facts set out in the affidavit it is clear that appellee had a right to rely upon his attention to the cause. That the negligence of an attorney

Masten v. Indiana Car, etc., Co.

is the negligence of his client is well settled. It is shown that he was employed three months before suit was brought to defend the action if brought, and was told by appellee to appear and defend in the event any action was brought, and that he investigated the matter before suit was brought and reported the result of his investigation to appellee. It is evident from all the facts that the default judgment was not proximately caused by appellee's negligence.

The statute does not require that the motion and affidavits should set out the original cause of action but simply the nature of it. The facts constituting the defense must be shown, but it is necessary to state only the nature or character of the original action. In passing upon such an application the court will not inquire into the merits of the original action and, for this reason, counter-affidavits as to the alleged facts relied on as a defense are not admissible. Dobbins v. McNamara, 113 Ind. 54, 3 Am. St. 626; Buck v. Havens, 40 Ind. 221; Nord v. Marty, 56 Ind. 531.

From the motion and affidavits it is clear the original action was by appellant against appellee for personal injuries. Durre v. Brown, 7 Ind. App. 127; Wills v. Browning, 96 Ind. 149.

Some confusion arises from the fact that the affidavits and counter-affidavits refer to the complaint, and it, with the answer, is set out in the transcript. They necessarily came before the trial court at some stage of this proceeding for the reason that the final judgment rendered could not have been rendered without them. But, in any event, there is enough in the affidavits themselves to show the nature of the original action and that appellee had a meritorious defense. The principal question in the case is whether there is a showing of mistake, inadvertence or excusable neglect. The affidavit of Mr. Ketcham shows, among other things, that during the time in question he was Attorney-General of the State, and sets out the particular public duties in which he was at the times in question constantly engaged,