
    Hays et al. v. The Bank of the State.
    “Excusable Neglect.” — As an example of what will not constitute “excusable neglect,” on an application to set aside, a default,under § 99 of the code, the reader is referred to the opinion herein at length.
    APPEAL from the Dearborn Circuit Court.
   Hanna, J.

Suit on two bills of exchange, drawn by Enoch Miller, indorsed by Job Miller, and accepted by Hays. Service, on the last day on which service could be had, on Miller and Miller; judgment by default against them on the second day of the term. No service on, nor appearance then, by Hays. On the fifteenth day of the same term, the defendants appeared in Court, and moved to have the judgment and default set aside on the affidavits of Hays and Enoch Miller, and produced and offered to file their answers, and go to trial at the term. The motion was overruled, which presents the only point made by the appellants.

The affidavit of Hays stated that he was a resident of Ohio, and was not served, &e.; that the other defendants were the accommodation drawer and indorser of said bills, and he was to pay whatever sum was due thereon, which facts were known to the bank; that said bills were for money borrowed of the bank by said Hays, and were in renewal of others before then held by said bank, which had been at various times renewed, at, &c., usurious rates, &e., setting out facts; that a suit had been commenced in the Common Pleas Court, and, upon the filing of an answer, setting forth, &c., the President of the Lawrenceburgh branch, through which said loan was made, and affiant had agreed that said suit should be dismissed, because there was pending in, &c., an attachment proceeding against said Job Miller, in which it was expected eleven or twelve hundred dollars would be realized; that after said proceeding should be decided, they would adjust the balance, &c.; that said suit was dismissed, and he informed said Miller and Miller of said arrangement; that, at the commencement of this action, which was instituted by said President, &c., he was absent in Illinois on business, but said Millers immediately wrote to him, apprising him of the fact, and as soon as he could possibly leave his business, he returned home, but arrived after a default was taken, &c.; that said other defendants did not understand his defence, &c., having, as aforesaid, understood that said bills were arranged, did not make any defence; that he had no attorney, having, after the dismissal, as aforesaid, discharged his attorneys then employed; that he would have had an attorney to defend, &c., if he had not been deceived by said arrangement; that he offers to appear and file his answer, and try said case at the present term, &c.

The said Enoch’s affidavit is similar to that of said Hays; and, in addition, he states that he and said Job, having no pecuniary interest in the suit commenced in the Common Pleas, left the defence to said Hays, and when this, suit was began, supposed in his absence his attorneys would defend the same; that they have a good defence, and, if they had known the attorneys formerly employed would not have continued in the defence, they would have employed attorneys, and prosecuted the same, &c.

"We can not say that the ruling of the Court on said motion was not the exercise of a sound legal discretion.

The said Millers certainly neglected their interests in not fully informing themselves, upon the institution of this suit, whether there was any defence, and, if so, what and by whom it should be presented. This was especially their duty in the known absence of the person who, it is now said, really owed the debt. The nature of the defence they could have ascertained by an examination of the record of the former suit. The question as to whether the attorneys employed in that suit would present said defence in this, could have been ascertained from them as well as any information derived from Hays.

D. S. Major, for the appellants.

McDonald & Roache, for the appellees.

We can not, therefore, say that such a degree of diligence was used, as should bring this within the term, “excusable neglect,” as to said Millers, so as to authorize the Court to grant the relief prayed. As to Nays,'he can make his defence when the bank presses the suit against him.

Per Curiam. — The judgment is affirmed, with 1 per cent. damages and costs.  