Toledo, Wabash, & Western Railway Co. v. Gates

32 Ind. 238

Opinion

Elliott, J.

Suit by Gates against the appellant. A judgment was rendered by default. A motion was made at the same term to set aside the default and permit the appellant to plead to the action. The motion, which was supported by an affidavit, was overruled. This ruling presents the question in the case.

The affidavit filed in support of the motion, which in other respects seems sufficient, is defective in failing to state the nature of the appellant’s defense. The affidavit was filed by the appellant’s attorney, and states, “ that the company has a meritorious and complete defense to one lot of the hogs claimed, as affiant is informed and believes, and that he is further informed that said Gates is not entitled to recover on any part of his claim.” The appellant having been duly served with process, the default could only be set aside to let in a defense to the merits; and the rule in such ■cases is, that the ground of such defense must be distinctly presented to the court in writing, and verified by affidavit. Frost v. Dodge, 15 Ind. 139; Goldsberry v. Carter, 28 Ind. 59. As the nature of the defense was not so stated in the affidavit, the court did right im overruling the motion.

Judgment affirmed, with costs and five per cent damages.