Calumet Teaming & Trucking Co. v. Young

• Decision Date: 09 April 1941
• Docket Number: 27509.
• Court: Indiana Supreme Court
• Parties: CALUMET TEAMING & TRUCKING CO. v. YOUNG.

33 N.E.2d 109

218 Ind. 468

CALUMET TEAMING & TRUCKING CO. v. YOUNG.

No. 27509.

Supreme Court of Indiana

April 9, 1941

Rehearing Denied May 2, 1941.

See 33 N.E.2d 583.

Appeal from Superior Court, Lake County; John F Cody, special judge.

Stiles & Reynolds, of Gary, for appellant.

Gavit & Richardson, of Gary, for appellee.

FANSLER Judge.

This is an appeal from an action to review a judgment for error under section 2-2604 et seq., Burns' Ind.St.1933, section 428 et seq., Baldwin's Ind.St.1934. There was judgment setting aside and vacating the original judgment.

Appellee moved to dismiss the appeal on the ground that the judgment presently appealed from was rendered after the time had expired within which an appeal might have been taken from the original judgment. The rule which appellee seeks to invoke applies to attempted appeals by the plaintiff in the action to review. Talge Mahogany Co. v. Astoria Mahogany Co., 1924, 195 Ind. 433, 141 N.E. 50, 145 N.E. 495; Watson's Revision of Works' Practice, Vol. 2, § 2225, p. 791. But it has no application to defendants in the action to review, since they were successful in procuring the original judgment and had no reason to appeal therefrom. The motion to dismiss is overruled.

The appellee, by his complaint to review, predicates error in the original trial upon the insufficiency of the complaint to state a cause of action, and upon the ground that, after he had appeared, he was defaulted for failure to plead to a third and fourth paragraph of complaint, and that the third and fourth paragraphs of complaint were based upon a new cause of action, and that, because of the default, the court had no jurisdiction of his person.

The fourth paragraph of complaint was dismissed after the default. The other three paragraphs are based upon the same cause of action.

After the original judgment was entered, and after the term at which it was entered, the appellee brought an action under section 2-1068, Burns' Ind.St.1933, section 173 Baldwin's Ind.St.1934, to be relieved from the judgment and the default taken through mistake, inadvertence, surprise, or excusable neglect. This action was sufficient to direct the court's attention to any error there might be in defaulting the defendant, but the plaintiff was not relieved of the judgment and did not appeal. It would seem therefore that all questions of error concerning the default were adjudicated and finally determined in that action. There was no other motion to set aside the default. In Lambert v. Smith, State Fire Marshal, 1939, 216 Ind. 226, 228, 229, 23 N.E.2d 430, 431, it is said: 'A complaint to review a judgment must show that proper objections or exceptions were reserved in the original proceedings to save the error subsequently sought to be corrected. Myer v. Minch, 1910, 45 Ind.App. 495, 91 N.E. 32. This rule, of course, does not apply to cases in which the error is not waived by failing to except, as where the complaint does not state any cause of action or the court has no jurisdiction over the subject-matter. Davis v. Perry et al., 1872, 41 Ind. 305; Davidson v. King et al., 1875, 51 Ind. 224.' The latter statement, to the effect that the error in...