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February 25, 2011

Default Judgment Set Aside Because of Insufcient Process
Category: Civil Procedure (http://www.price-law.com/news-blog/category/civil-procedure/) | Author:
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When is a summons so defective that it fails to give the responding party notice? On February 24, 2011, the procedure/) MENU
Indiana Court of Appeals provided an answer to that question in Cotton v. Cotton
Claims & Defenses
(http://www.in.gov/judiciary/opinions/pdf/02241101ewn.pdf), 942 N.E.2d 161 (Ind. Ct. App. 2011), Case
(http://www.price-
No. 43A03-1005-DR-32. To put it simply, a summons does not comply with the Trial Rules or due process if
law.com/news-
it does not inform the person that default judgment could be entered against her if she fails to appear.
blog/category/claims-
defenses/)
In this case, a husband led a petition for dissolution of marriage. The wife was served with a summons that
was not on a form provided by the Clerk, but was typewritten and prepared by the husbands counsel. It Class Actions
provided as follows: (http://www.price-
law.com/news-
blog/category/class-actions/)
You have been sued by the Petitioner in the Kosciusko Circuit Court . . . . The nature of the lawsuit and
Commercial Litigation
the demand made against you are stated in the Petition for Dissolution of Marriage which is served on
(http://www.price-
you with this Summons.
law.com/news-
blog/category/commercial-
You may personally appear in this action or your attorney may appear for you. You must appear before
litigation/)
the Court if directed to do so pursuant to a Notice, an Order of the Court, or a Subpoena. You may le a
Constitutional Issues
response to the Petition prior to submission of the Petition at nal hearing which may be tried or heard
(http://www.price-
after the expiration of sixty (60) days from the date of ling of the Petition for Dissolution of Marriage or
from the date of the publication of the rst Notice to a non-resident. law.com/news-
blog/category/constitutional-
issues/)
The wife did not appear, did not receive notice of the nal dissolution hearing, and did not appear at that
Evidence (http://www.price-
hearing. After the hearing, the trial court defaulted the wife and entered the nal dissolution decree, which
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awarded the parties joint legal and physical custody of their son and divided the marital estate. After the
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wife learned that the dissolution decree had been entered, she moved to set aside the judgment, but the
Firm News (http://www.price-
trial court denied that motion.
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blog/category/ rm-news/)
On appeal, the Court noted that the wifes claim was for the insuf ciency of process, not the insuf ciency of General (http://www.price-
service of process. law.com/news-
blog/category/general/)

A claim of insuf ciency of process challenges the content of a summons; [insuf ciency of service of Indiana Law Review

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process] challenges manner method of service. Heise v. Olympus Optical Co., 111 5 (N.D.
Ind. 1986). law.com/news-
blog/category/indiana-law-
The summons in this case was defective because it did not warn her of the possibility of default. review/) MENU
Indiana Law Update
The summons informed Wife that she or her attorney may appear and that she may respond, but nothing (http://www.price-
in the summons required Wife to do anything in response to the petition having been led, other than to law.com/news-
appear before the court if directed to do so. We hold that due process requires that, at a minimum, a blog/category/indiana-law-
respondent in a dissolution proceeding be noti ed of the risk of default for failure to appear or update/)
otherwise respond. Indianapolis Law Club
(http://www.price-
law.com/news-
blog/category/indianapolis-
Without a statement of the consequences, namely, that judgment could be entered without further law-club/)
notice should Wife fail to appear or otherwise respond, the summons did not satisfy due process or Insurance Claims
comply with the intent of Trial Rule 4(C)(5). Accordingly, the dissolution court did not obtain personal (http://www.price-
jurisdiction over Wife, and the dissolution decree is void as a matter of law. law.com/news-
blog/category/insurance-
claims/)
The husbands failure to include this information was not excusable under Trial Rule 4.15(F)
(http://www.in.gov/judiciary/rules/trial_proc/index.html#_Toc244662892) because the failure to inform the Legal Malpractice
wife of the consequences of failing to appear was not a minor, technical defect in the summons. (http://www.price-
law.com/news-

We advise that all attorneys immediately check to ensure that the form of summons they use comply with blog/category/legal-

this decision. malpractice/)

National Legal News

Lessons: (http://www.price-
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1. A default judgment arising from an insuf cient summons is void as a matter of law. blog/category/legal-news/)
 2. A summons is insuf cient if it does not notify the defendant of the risk of default for failure to appear Personal Injury
or otherwise respond. (http://www.price-
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