Haley v. Burke-Cadillac Co. ( 1930 )

Enloe, J.

July 26, 1928, appellee obtained a judgment by default against appellant, in Room 1 of the Marion Municipal Court. Thereafter, September 24, 1928, appellant filed in said court his complaint to set aside said judgment and default upon the grounds of surprise and excusable neglect, based upon an alleged promise made by the attorney for appellee, the plaintiff in that action, that, in view of the circumstances then attending said defendant, now appellant, he, as attorney for said plaintiff, would not take any default and judgment against this appellant, but would accord him further time in which to answer in said cause. This complaint was met by an answer in denial.

The matter in issue was submitted to the court, evidence heard, and the court made a finding against appellant, hence this appeal.

The vital question on the hearing below was as to whether or not the- attorney for appellee had made the said promise, as alleged by appellant. This was a question solely for the trial court, and it found against appellant upon that issue. The evidence was conflicting, and we are not at liberty, as a court of errors, to weigh the evidence and to set aside such finding.

We find no error of law in this record, and the judgment must be, and is hereby, affirmed.