Alvord v. Gere

Perkins, J.

Gere brought suit against Alvord, Sullivant, Claypool and Davison, to recover damages alleged to have been sustained by him through the upsetting of a stage-coach to the amount of 2,000 dollars. Process was served on Alvord, and returned not found as to the other defendants. Alvord was defaulted, and judgment rendered against him for 2,000 dollars, on the 5th day of the term,. *386 and the suit was dismissed as to the defendants not served.

I. P. Usher and W. II. Mallory, for the appellant. (1) .

Two days afterwards, being the 7th day of the term, Alvord appeared and moved that the judgment be set aside, and leave given him to plead. The motion was founded upon the affidavits of Owen Tuller, Reuben Tuller, and^ William H. Mallory.

The affidavits establish the following facts: That the stage company, the defendants included in the writ, had, before the commencement of the term of Court, fully settled with and paid the plaintiff for the damages sustained and sued for; that Alvord, the defendant served, immediately after being notified of the suit, employed Owen Tuller as his agent to attend to it, employ counsel, &c.; that Alvord resided at Indianapolis, but was compelled by business to be absent from the state till after the commencement of the term of Court; that Tuller wrote to a brother of his to employ counsel, &c., and supposed it had been done, but, from a misunderstanding as to the Court and term, it turned out that it had not been; and that as soon as these facts were known, counsel were employed, who made the application to defend, &c.

These are the principal facts. We think they made a case that entitled the defendant to have the default set aside, leave given to plead, and a trial.

Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.