Chenoweth v. Chenoweth

• Citation: 114 N.E. 988,64 Ind.App. 260
• Decision Date: 30 January 1917
• Docket Number: No. 9713.,9713.
• Parties: CHENOWETH v. CHENOWETH.
• Court: Court of Appeals of Indiana

64 Ind.App. 260

114 N.E. 988

CHENOWETH

v.CHENOWETH.^*

No. 9713.

Appellate Court of Indiana, Division No. 2.

Jan. 30, 1917.

Appeal from Superior Court, Marion County; W. W. Thornton, Judge.

Action by Blanche E. Chenoweth against Daniel A. Chenoweth. Judgment for plaintiff modified on defendant's motion, and defendant appeals from remainder of judgment. Appeal dismissed.

Walker & Hollett, of Indianapolis, for appellant. Smith, Remster, Hornbrook & Smith, of Indianapolis, for appellee.

DAUSMAN, J.

Appellee instituted this action against appellant for divorce, alimony, and the custody of their child. There was personal service on appellant. On the 15th day of September, 1915, he was defaulted and judgment was rendered, granting her a divorce and alimony in the sum of $5,000 and the custody of the child. On the 11th day of February, 1916, the court overruled his motion to set aside the default, and he then filed his motion to modify the judgment by striking out “the judgment for alimony,” and that part of the decree giving her the custody of the child. On the 14th day of February, 1916, at a subsequent term, the court sustained his said motion to modify, and thereupon ordered and decreed that so much of the judgment as awarded the alimony and the custody of the child to appellee be annulled and set aside. The transcript was filed in the office of the clerk of this court on the 10th day of August, 1916. Appellee moves to dismiss on the ground that the appeal was not perfected within the time fixed by statute. Section 672, Burns 1914.

[1] Appellant concedes that under the law as stated in Kurtz v. Phillips, 113 N. E. 1016 (October, 1916), he could not have appealed from the action of the court in overruling his motion to set aside the default. He further concedes that if his said motion to modify had been overruled, then under the law as stated in Thomas v. Thomas, 110 N. E. 573, he could have derived no advantage therefrom for the purpose of computing the time allowed for an appeal from the original judgment. But he contends that the action of the court in modifying the judgment brings him within the case of Johnson v. Foreman, 24 Ind. App. 93, 56 N. E. 254; and therefore that the statutory period within which his appeal might be taken from the original judgment should be reckoned from the day on which the modification was made. This contention cannot be sustained. The case of Johnson v. Foreman, supra, differs radically from the case at bar. The facts of the Johnson Case are that Johnson recovered judgment against Foreman; that long afterward and at a subsequent term Foreman's motion to modify was sustained, and the judgment was so changed as to deprive Johnson of his substantial rights as fixed by the terms of the original judgment; that Johnson treated the motion to modify and the action of the court thereon as...