Hill and Another v. Crump. attorneys of said court, partners in business, to defend the suit, and put them in possession of the facts constituting his defense, and gave them the names of his witnesses, and had them served with process; that owing to the dangerous illness of his wife, he was unable to attend the court until that day, and, for the same reason, was unable to remain in attendance during the remainder of the term, as the disease was feared to be of a fatal character. That Matthews, the assignor of the note in suit, sold and conveyed to the affiant the land described in the complaint and mortgage, for $2000; that $1800 of said sum was paid at the time of the sale; that said Matthews claimed to be the owner of eight acres of land adjoining the tract described in the mortgage, but, in truth, had no title to the same, but the title was in one Lorenzo D. Conn. That affiant objecting to said purchase, on account of said outstanding title, the said Matthews then and there agreed that if affiant would agree to pay him $300, he would secure said Conn's title to said land to affiant, and said note for $500 was given accordingly, with the mortgage, $200 for the remainder of said sum of $2000, and $300 for said eight acres of land; that the right, title and possession of said eight acres of land still remained in said Conn. That on the day of the maturity of said note, the affiant tendered to the plaintiff the sum of $212, principal and interest due upon the portion of the sum included in said note for which he had received a consideration. The affidavit of one of the counsel employed for the defense disclosed these facts: The said attorney, at the time of his employment, was, and continued to be at the time of making the motion, Provost Marshal of the Third Congressional District; that the draft in said district was enforced by him on the 22d of the month, and since the commencement of the term he had been too much engaged in preparing for and enforcing the draft to attend the court; that he forgot to speak to any attorney to watch said case for him. His partner had not been informed of Hill and Another v. Crump. the employment, nor could he have attended the court, as he was engaged as one of the principal clerks in the provost marshal's office. The application having been made to set aside the default at so early a day of the same term at which the default was taken, and showing clearly that the appellant was without fault, that the failure of his counsel to attend was, at most, excusable neglect on their part, and exhibiting, also, a meritorious defense, should have been granted on motion. It is objected that no time was fixed within which Matthews was to procure the title to the eight acres. The conveyance must be made within a reasonable time, and more than a year had passed when the action was commenced. The appellee insists that, as judgment had been rendered in the cause, he could only be brought into court by notice of the application to be made to set aside the default and judgment. The record shows both parties to the suit to have been present, appearing by counsel, at the time the motion was made, and, therefore, notice was not required. It is also urged that the reasons why the court refused to set aside the judgment should be shown in the record. Where the bill of exceptions contains the affidavits upon which the motion is founded, we will consider ourselves as sufficiently advised of the reasons upon which the court based its action. The judgment is reversed, at the costs of appellee, and the cause remanded, with directions that the default and judgment be set aside. A petition for a rehearing having been filed, the following opinion, overruling the petition, was delivered by RAY, J.-The appellee asks a rehearing in this case, on the ground, first, that the record does not purport to set forth all the evidence submitted to the court below upon the motion to set aside the default. Hill and Another v. Crump. The record shows that the motion was made upon the affidavits filed. In our opinion, it would not have been proper for the court to have received counter affidavits, denying the truth of the facts averred as constituting the defense. This would have been simply trying the merits of the action upon affidavits, and if the party had suffered default through his mistake, inadvertence, surprise, or excusable neglect, he was entitled, upon an affidavit showing facts constituting a meritorious defense, to have the truth of those facts passed upon by a jury. Nor can the truth of the facts stated as a cause for having the default set aside, be determined upon an issue raised by counter affidavits. The second ground upon which the rehearing is asked is, that under the ninety-ninth section of the practice act, the application is addressed to the discretion of the court below, and the exercise of that discretion cannot be reviewed in this court. We have been cited to cases in the Court of Appeals of New York, where it has been held that such applications are addressed to the discretion of the judge before whom they are made, and that the exercise of that discretion will not be reviewed upon appeal. Such, however, has not been the rule in this State, but it has always been that the court must exercise a sound legal discretion, and that from an abuse of that discretion an appeal would lie to this court. It has been treated in the decisions in New York, to which we are referred, as a mere question of practice. The case under consideration, in our opinion, involves the substantial rights of the defendant. In the case of Alvord et al. v. Gere, 10 Ind. 385, which was an application in the court below to set aside a default, and permit the defendants to file answers, the action of the lower court in refusing such application was reviewed, and the cause was reversed for the error committed by the court in refusing to grant the application. In all cases presented here, upon appeal, where the proper exercise of the discretion of the court in ruling upon the Grubbs v. The State. application has been questioned, the point has been con- The petition for a rehearing is overruled. GRUBBS V. THE STATE. REVERSING PREVIOUS RULINGS.-Great caution should be exercised by the Supreme Court in reversing former decisions, which have been received and acted upon as settling the law, and especially when a rule of property would be overturned, and that would be made criminal which had before been adjudged lawful. SAME.—It is often better, in such cases, that what is settled should not be disturbed by judicial action, though it may be wrong. FOREIGN INSURANCE COMPANIES.-Section 56 of an act entitled "an act for the incorporation of insurance companies, defining their powers and prescribing their duties," (1 G. & H. 398,) which purports to regulate the agencies of foreign insurance companies doing business in this state, is unconstitutional, because the subject of the section is not embraced in the title of the act, and is not matter properly connected with the subject expressed in the title. APPEAL from the Marion Common Pleas. FRAZER, J.-This was a prosecution for violating the fifty-sixth section of "an act for the incorporation of insurance companies, defining their powers and prescribing Grubbs v. The State. their duties," as the same was amended by the act of 1855, 1 G. & H. 398, by doing business as agent of a foreign insurance company, without having complied with that act. It is contended that the provision of the act charged to have been violated is void, because it is not a subject expressed in the title of the act, nor a matter properly connected with the subject which is so expressed, as required by the 19th section of the 4th article of the Constitution of the State. This very question was decided by this court against the validity of the enactment, more than five years ago, in Igoe v. The State, 14 Ind. 239. Three Legislatures have since held their sessions, and adjourned without, we believe, even attempting to enact the provisions thus held void, in a form which would be free from the constitutional objections then adjudged to exist. Our citizens, upon the faith of that decision, standing unquestioned so long, have unsuspectingly acted as agents for foreign insurance companies without complying with an act supposed, in good faith, to be void, and so pronounced by the solemn judgment of the court of last resort. All classes have, upon the like faith, purchased and paid for indemnity covering, in the aggregate, probably millions in value. We ought, in any case, to proceed with great caution in reversing opinions heretofore pronounced by this court, and received and acted upon as settling the law; and especially when a rule of property would be overturned, and that would be made criminal which had before been adjudged lawful. In such cases, it were often better that what is settled should not be disturbed by judicial action, though it be wrong. This principle has so often received the sanction of appellate courts, that it has become a maxim for their guidance, and it is especially important that it should not be forgotten here, where the judges hold for short terms, and where, unfortunately, the entire court may be changed at once. it be also remembered that the validity of every contract of insurance, and every policy issued in this State, by foreign insurance companies, would be brought in question should If |