Gilmer v. Hurst, 17491.

• Decision Date: 21 November 1946
• Docket Number: No. 17491.,17491.
• Citation: Gilmer v. Hurst, 117 Ind.App. 102, 69 N.E.2d 608 (Ind. App. 1946)
• Parties: GILMER v. HURST.
• Court: Indiana Appellate Court

117 Ind.App. 102

69 N.E.2d 608

GILMER

v.HURST.

No. 17491.

Appellate Court of Indiana, in Banc.

Nov. 21, 1946.

Appeal from Marion Juvenile Court; Mark Rhoads, Judge.

Action by Lucille Hurst against William H. Gilmer, wherein a default judgment was entered against the defendant.Thereafter the defendant filed a motion to set aside the judgment because of mistake, inadvertence, surprise and excusable neglect, and the plaintiff moved to strike defendant's motion from the record because no notice was served on the plaintiff.From a judgment striking the defendant's motion from the files, the defendant appeals, and the plaintiff moves to dismiss the appeal.

Motion to dismiss appeal denied and judgment reversed.Hall Cochrane, of Indianapolis, for appellant.

Leo X. Smith, of Indianapolis, for appellee.

FLANAGAN, Presiding Judge.

On January 27, 1942, default judgment was entered against appellant by the Marion Juvenile Court.On January 14, 1946, appellant filed in the original action his motion to set aside the judgment because of mistake, inadvertence, surprise and excusable neglect under § 2-1068, Burns'1933 Supp., § 173, Baldwin's1934 Supp., and the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A. Appendix, § 301 et seq.

Appellee responded with the following motion: ‘The plaintiff, appearing specially to question the jurisdiction of this court, moves to strike from the records the pleading filed by William H. Gilmer and designated ‘Motion to set aside default judgment’ for the reason that no notice of any kind has been issued or served on plaintiffLucille Hurst.'Appellee's motion was sustained, appellant's motion was stricken from the files and this appeal followed.

Appellant insists that by asking the court for affirmative action appellee in fact appeared generally.With this contention we agree.If appellee desired to challenge jurisdiction of her person for failure of service of process or a defect in such service her remedy was a motion to quash or plea in abatement, whichever the facts warranted.But instead of challenging the process she attacks appellant's pleading itself.Failure of process is not grounds for striking such a pleading from the files and when appellee sought to have it stricken she thereby waived the failure of process.

But appellee says that appellant's motion should have been stricken anyway because the statute(§ 2-1068, Burns'1933 Supp., § 173, Baldwin's1934 Supp.) requires such an application...