
    Carlisle v. Wilkinson and Wife.
    At common law, a default could not be set aside at a term after the one at which judgment was rendered.
    By § 99, 2 R. S. p. 48, it is discretionary with the Court to relieve a party from a judgment by default, or refuse to do so, at any time within a year from the rendition of the judgment.
    Where a discretionary power is vested in an inferior Court, there must be a plain case of abuse of that discretion, to justify interference by the Supreme Court.
    An application for relief from such a judgment, made at the first term after a default, and based solely upon the affidavit of the defendant simply showing the employment of an attorney and his neglect to defend, was held to have been correctly overruled.
    And a second application, made at the next succeeding term, based upon the first affidavit and an affidavit of the attorney that ho did not understand that he was employed, although tbe defendant might have understood that he was employed, was hold to have been correctly overruled, for the reason that the affidavit of the attorney came too late—that ordinary diligence required that it should have been filed at the preceding term.
    
      Quaere, whether, if both affidavits had been filed on the first application, it would have been error to overrule it; and whether an application can, in any case, be renewed upon an additional showing, after having been once made and overruled.
    
      Wednesday, May 23.
    APPEAL from the Morgan Circuit Court.
    
      
       Mr. M’Donald, for the appellee, in the course of a lengthy argument, insisted that on the overruling of these motions, no error can be assigned. He argued thus:
      At the common latv, a motion to set aside a default cannot be made after the term at which the default is rendered. Therefore, the only ground on which these motions could have been made, is a provision of the code, which reads as follows:
      
        “ The Court may, also, in its discretion, allow a party to file his pleadings after the time limited therefor, and at any time within one year relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect." 2 B. S. pp. 48, 49.
      Here is a discretionary power vested in the Circuit Court; and the question is, can any exercise of it bo assigned for error ?
      We understand the rule to be, that where a statute creates a discretionary power, the doings of a Court in relation to it can never bo assigned for error; and the reason seems to be that the inferior Court, by the very words of the statute, may or may not, act as it deems most proper.
      Where a statute provides that a Circuit Court might, “at its discretion,” change the venue, this Court has held that a refusal to change the venue cannot he assigned for error, “although a legal cause for filing the' petition exist.” 5 Blaekf. 576. Whore a statute (B. S. 1843, p. 1001) provided, that the Circuit Court, “in the exercise of a fair and sound discretion, may grant” a change of venue, this Court has held that a refusal to do so could not be assigned for error; because, as Judge Perkins said, “whether the change should or should not be granted, was a matter entirely in the discretion of the Circuit Court.” 8 Blackf. 282. In Hubbard v. The State, 7 Ind. R. 164, and in Hall v. The State, 8 id. 440, the same doctrine is held, and upon the same reason. These cases as to a change of venue, being on statutes giving á discretionary power, seem to us fully in point. Surely it cannot be argued that a statute authorizing a Court, “in its discretion,” to set aside a default, is to he construed differently from a statute authorizing the same Court, “in its discretion,” to order a change of venue.
      The samo doctrine has boon repeatedly held by the Supreme Court of the 
        United States. And it is upon this principle that, in that Court, a wrongful refusal to grant a new trial cannot be assigned as error. That Court has always held that the granting or refusing of a new trial is a matter solely in the discretion of the Court; and that therefore a decision on the question cannot be revised on error. Henderson v. Moore, 5 Cranch, 11.—Marine Ins. Co. v. Young, id. 187.—Barr v. Gratz, 4 Wheat. 220.—The United States v. Daniel, 6 id. 542. On the other hand, the Supreme Court of Indiana, at an early day, held that a new trial is, “in many cases, demandable as a matter of right;” and that, upon this principle, error may be assigned touching a motion for it. 1 Blackf. 21.
      It has been repeatedly held in the Supreme Court of the United States, that a motion to set aside a default is addressed to the discretion of the Court; and that, therefore, upon a disallowance of the motion, error cannot be assigned. The United States v. Evans, 5 Cranch, 280.— Welsh v. Mandeville, 7 id. 152. It is true, that in these cases the motion was to reinstate a cause. But as these motions were made by the plaintiffs after being nonsuited, and as a nonsuit always supposes a default on the part of the plaintiff to appear and prosecute, they wore substantially motions to set aside defaults. And it is surely the same whether such motions come from the plaintiff or defendant, who, having failed to appear, is defaulted. To the same effect appear to be the cases of Wall v. Wall, 2 Har. and Gill, 79; Romaine v. Norris, 3 Halst. 80; Chase v. Davis, 7 Verm. R. 476; Edgell v. Bennett, id. 534; The State v. Ware, 10 Ala. R. 814.
      The case of Garner v. Crenshaw, 1 Scam. 143, is exactly iu point. That was a motion hy the defendant to set aside a default. And the Court said: “Apart from the merits of the application to the Circuit Court, it will be perceived that an application to set aside a default is addressed to the sound legal discretion of the Court; and that no writ of error will lie to correct the erroneous exercise of this power. We are not only satisfied that the power was discreetly exercised in this case, and conformably to its justice, but that the refusal to sot aside the default cannot bo assigned for error.”
      Will we, however, be told that, according to several cases in our own Supreme Court, the abuse of a discretionary power may be assigned for error 1 We have carefully examined the decisions of that Court on this question, and we have found none analogous to the case ptnder consideration. The only cases relating to the matter which we have been able to find, are Gordon v. Spencer, 2 Blackf. 286; Monis v. Graves, 2 Ind. R. 357; Detro v. The State, 4 id. 201; Heberd v. Myers, 5 id. 95. Besides the above cases, we have found none in our Supreme Court referring at all to this subject. In each of these cases, there is a mere dictum that, unless in clear cases of abuse, the Court will not interfere with the exercise of discretionary power. And vre believe that there is no case in our Supreme Court in which a reversal has occurred by reason even of an abuse of discretionary power in the Court below. Without such a case, we submit that it cannot be truly said that the point in question has been decided by this Court.
    
   Worden, J.

Complaint by the appellees against the appellant, for the assignment of dower in certain real estate. Judgment by default for the plaintiffs below.

At the next term of the Court after the judgment was entered, Carlisle appeared by his attorney, and moved to set aside the judgment. He filed an affidavit, setting out matters relied upon as a defense to the plaintiffs’ claim of dower, and stating “that immediately on the service of process on Mm in this case, he went to Lucian Barbour, an attorney at law, of Indianapolis, and of that Court, and employed him to attend to the defense of this case, he having always been the attorney of affiant, and supposed he had so done until after the adjournment of the last term of this Court, when the affiant says he believes the said Barbour neglected it; and affiant says if the judgment which has been rendered against him in this case, is set aside and opened, and he is permitted to file his answer herein, he cán and will establish all the aforesaid facts,” &c.

The motion was overruled, and exception taken.

At the next term of the Court, and before the expiration of a year from the rendition of the judgment, the motion was again made, and the affidavit of said Lucian Barbowr was filed,' in support of the motion, as well as said affidavit of Carlisle. The affidavit of Barbour states, “ That, in the month of September or October, in the year 1854, Carlisle, the defendant, came to the law-office of the deponent and Albert G. Porter, with whom the deponent was then practicing law in partnership, and advised with them as his attorneys, relative to a suit then recently commenced against him in the Morgan Circuit Court by the plaintiffs, for a dower right in certain mill property situated in Waverly, in Morgan county. The deponent did not then know when the next term of the Court would be held in Morgan county, and so informed Mr. Carlisle; and as both the deponent and said Porter had ceased to practice law in said Morgan Circuit Court, they made no contract with said Carlisle to attend to the case at Martinsville; but they advised with him as to his defense to the action. The deponent further says, that said Carlisle left the office at that time, without anything being said about any employment of any person to attend to the case in Morgan county; and as this deponent and said Porter were attending to said Carlisle’s law business generally in Marion county, the said Carlisle seems to have left the office with the expectation that the deponent and said Porter would attend to the case aforesaid, probably not understanding the rule that the firm of Barbour and Porter had adopted, not to attend to law business in any Court out of the county of Marion, without a special employment and undertaking to that effect. The deponent further says, that he has no recollection whether anything was said in said conversation with said Carlisle, as to the rule of this deponent and said Porter that they would not attend Court out of the county of Marion, without a special undertaking to do so, nor does he know that said Carlisle knew of it, nor whether said Carlisle had, at any other time, been involved in any law business out of Marion county.”

The motion was again overruled, and exception taken; and the correctness of these rulings is the only question presented by the record.

At common law, a default could not be set aside at a term after the one at which judgment was rendered. Blair v. Russell, 1 Ind. R. 516.— Gullett v. Housh, 5 Blackf. 33.

The statute relied upon, authorizing such proceeding, is as follows:

* * * “ The Court may also, in its discretion, allow a party to file his pleadings' after the time limited therefor; and at any time within one year relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any of the proceedings.” 2 R. S. p. 48, § 99.

By the above provision, it will be seen that it was in the “discretion” of the Court below to relieve the party from the judgment, and permit him to plead, or to refuse the application. Where a discretionary power is vested in an inferior Court, there must be a plain case of the abuse of that discretion, in order to justify ’the interference of this Court. Morris v. Graves, 2 Ind. R. 354.—Detro v. The State, 4 id. 200.—Heberd v. Myers, 5 id. 94.

The application, made at the first term of the Court after the default, was based solely upon the affidavit of Carlisle. That affidavit, so far as the point now under consideration is concerned, simply shows the employment of an attorney to defendí the cause, and a neglect by that attorney to do so. The ruling of the Court on this application, if not clearly right, is far from being clearly wrong. It seems to us that something more than mere neglect on the part of the attorney| should be shown—some good reason or excuse for the failure. The negligence of his attorney is the negligence of the party, and it should be shown to be “excusable”—otherwise, it is not within the terms of the statute.

But at the next term of the Courtj the affidavit of Mr. Barbour, the attorney alleged to have been employed, was filed, and the' motion to set aside the default renewed. The affidavit of Mr. Barbour puts an entirely different phase upon the matter. Mr. Barbour did not understand that he was employed at all in the cause, and of course could have been guilty of no negligence in not attending to it. The affidavits, taken together, show about this state of facts:—Carlisle, supposing he had employed Barbour to defend the suit, gave himself no more trouble about it; while Barbour not being employed, or not understanding himself to be employed, of course paid no attention to it whatever, and in the meantime default was entered.

It is insisted that the application to set aside the default having been once made and overruled, could not be repeated; that such an application is similar to applications for a change of venue. Millison v. Holmes, 1 Ind. R. 45.

It is unnecessary to decide, in the present case, whether the above proposition is, in all respects, correct, as we think the affidavit of Barbour came too late. There is no reason shown why it could not have been procured and filed at the time Carlisle’s was filed. Ordinary diligence, we think, required this to be done. One vacation intervened between the default, and the first application to set it aside, during which, for aught that appears, Mr. Barbour’s affidavit might have been taken, and filed in support of the motion. This, however, was hot done, but the appellant chose to rest the motion on his own affidavit. Having failed in this, he procured the affidavit of Barbour, and at the next term, renewed his motion upon the two affidavits. Under the circumstances, we think it clear that error was committed in overruling the motions.

R. L. Walpole, D. Wallace, and J. Coburn, for the appellant.

D. M’Donald, for the appellees .

' Whether or not, had both affidavits been filed on the first application, it would have been error to overrule it; or whether an application can, in any case, be renewed upon an additional showing, having been once made and overruled, are questions which we do not decide.

Per Curiam.

The judgment is affirmed with costs.  