Whiteside v. Adams

26 Ind. 250

• Court: Indiana Supreme Court
• Decided: May 15, 1866
• Status: Published

Opinion

Erazer, J.

Adams sued Whiteside upon a judgment rendered in another state. The summons was returned by the sheriff served “by leaving a copy at the last usual place of Abram L. Whiteside ” On the 19th of October, 1864, Whiteside was defaulted and judgment rendered against him for $2,065 57. At the May term, 1865, both parties appeared, and the defendant, upon affidavit, moved to set aside the default, and for liberty to defend the suit. The motion was overruled and he appeals.

R. Hill and J. M. Rogers, for appellant. W. Herrod, A. G. Porter, B. Harrison and W. P. Eishbaek, for appellee.

The errors assigned question the sufficiency of the service of the process, the sufficiency of the complaint, and the ruling upon the motion to set aside the default.

The last of the questions thus raised must be decided against the appellant. The affidavit on which the motion was based could only be made part of the record by bill of exceptions, and as this was not done we cannot properly know its contents, and without such knowledge we cannot say that the court erred upon the motion. Thompson v. White, 18 Ind. 373.

The complaint is said to be bad for the reason, only, that there was a defect of parties. This objection cannot be successfully made for the first time in this court. The same remark applies to the return to the process, that defect not having been made the ground of a motion to set aside the default. Harlan v. Edwards, 13 Ind. 430.

The judgment is affirmed, with costs.