Jurdzy v. Liptak, No. 30168

Docket NºNo. 30168
Citation180 N.E.2d 530, 243 Ind. 1
Case DateMarch 02, 1962
CourtSupreme Court of Indiana

Page 530

180 N.E.2d 530
243 Ind. 1
Cecelia L. JURDZY, Appellant,
v.
John LIPTAK, Appellee.
No. 30168.
Supreme Court of Indiana.
March 2, 1962.
Rehearing Denied April 18, 1962.

[243 Ind. 2] George W. McCain, Gary, for appellant.

Albert H. Gavit, Sr., and Fred F. Eichhorn, Gary, for appellee.

ARTERBURN, Judge.

The appellant has filed in this court a transcript and assignment of errors as an appeal from an order of the Lake Superior Court Room 3, setting aside and vacating a default judgment (in favor of the appellant) previously rendered in the same

Page 531

term of court. The action was brought by the appellant against the appellee for damages for personal injuries.

The appellee has filed a motion to dismiss the appeal on the ground that the setting aside of a default judgment during the term within which the same was rendered, it not an appealable judgment.

[243 Ind. 3] Both parties attack certain alleged technical errors in the preparation of their briefs which we, in view of our decision in this matter, need not consider.

The record in this case shows that the appellant obtained a service of summons on the Secretary of State, as provided by statute, which was returnable on the 7th day of August, 1961. A default judgment in the amount of $12,000.00 was taken on August 8, 1961; that on August 7th no court was held. However, in the latter part of the day of August 8th, after the default was taken, the appellee appeared and entered his appearance by counsel and was granted two weeks' time to plead. The next day, August 9, the defendant (appellee here) moved the court in writing to set aside and vacate the default judgment. On August 15th the court set the hearing on the motion to vacate. Appellant (plaintiff below) appeared by counsel and objected to the hearing, which objection was overruled. The court, on hearing, set aside and vacated the judgment previously rendered on default.

The appellant, in opposition to the motion to dismiss, claims that no notice was served upon the appellant (plaintiff below) to vacate and set aside the default judgment and that the trial court had no jurisdiction; that the proceedings to set aside and vacate the judgment were without due process and unconstitutional.

The law seems settled in Indiana:

'* * * that during term at which a judgment is rendered, the court has very broad powers on its own motion or upon that of any parties to modify, set aside or vacate its judgment. [Cases cited]' Clouser et al. v. Mock et al. (1959), 239 Ind. 143, 155 N.E.2d 745.

On the other hand, it has generally been held that a case is no longer in fieri after the term has expired [243 Ind. 4] within which a judgment is rendered, and after term there is no longer any authority on the part of the court to set aside or change the judgment under the common law. If the judgment is to be set aside, vacated or modified after term, the authority and jurisdiction must be sought in the statutes. McIntosh v. Monroe et al. (1953), 232 Ind. 60, 111 N.E.2d 658; Wagner v. McFadden (1941), 218 Ind. 400, 31 N.E.2d 628; Burns' § 2-1068.

As pointed out previously, the default judgment in this case was vacated and set aside within the term in which it was entered. The record fails to show that any notice of the motion to vacate and set aside the judgment was served upon the appellant (plaintiff below) or her attorney.

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7 practice notes
  • Funk v. State, No. 880S334
    • United States
    • Indiana Supreme Court of Indiana
    • November 18, 1981
    ...Rule 18. We find no Indiana case directly in point construing Criminal Rule 18. However, we do find guidance in Jurdzy v. Liptak, (1961) 243 Ind. 1, 180 N.E.2d 530. In that case a default judgment was won by Jurdzy against Liptak, who then moved to set aside the judgment. No copy of the mot......
  • Wagner v. State, No. 582S200
    • United States
    • Indiana Supreme Court of Indiana
    • February 14, 1985
    ...with the rule to call it to the court's attention at the first opportunity; otherwise compliance is waived." Jurdzy v. Liptak, (1962) 243 Ind. 1, 6, 180 N.E.2d 530, 532, reh. denied; see also Funk v. State, (1981) Ind., 427 N.E.2d 1081, reh. denied (1982); Enderle v. Sharman (1981) Ind.App.......
  • Enderle v. Sharman, No. 1-580A121
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1981
    ...rules of service pursuant to T.R. 5 to bring such defect to the trial court's attention or compliance is waived. Jurdzy v. Liptak, (1962) 243 Ind. 1, 180 N.E.2d 530. We believe that the complaining party has a similar duty to direct the trial court's attention to a defective affidavit pursu......
  • Strate v. Strate, No. 670A98
    • United States
    • Indiana Court of Appeals of Indiana
    • May 26, 1971
    ...of motions, petitions, or complaints alleging such facts has often been treated as a second appealable judgment. Jurdzy v. Liptak (1962), 243 Ind. 1, 6, 180 N.E.2d 530, 532; Globe Mining Company v. Oak Ridge Coal Company (1922), 79 Ind.App. 75, 80, 134 N.E. 508; Miedreich v. Lauenstein (190......
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7 cases
  • Funk v. State, No. 880S334
    • United States
    • Indiana Supreme Court of Indiana
    • November 18, 1981
    ...Rule 18. We find no Indiana case directly in point construing Criminal Rule 18. However, we do find guidance in Jurdzy v. Liptak, (1961) 243 Ind. 1, 180 N.E.2d 530. In that case a default judgment was won by Jurdzy against Liptak, who then moved to set aside the judgment. No copy of the mot......
  • Wagner v. State, No. 582S200
    • United States
    • Indiana Supreme Court of Indiana
    • February 14, 1985
    ...with the rule to call it to the court's attention at the first opportunity; otherwise compliance is waived." Jurdzy v. Liptak, (1962) 243 Ind. 1, 6, 180 N.E.2d 530, 532, reh. denied; see also Funk v. State, (1981) Ind., 427 N.E.2d 1081, reh. denied (1982); Enderle v. Sharman (1981) Ind.App.......
  • Enderle v. Sharman, No. 1-580A121
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1981
    ...rules of service pursuant to T.R. 5 to bring such defect to the trial court's attention or compliance is waived. Jurdzy v. Liptak, (1962) 243 Ind. 1, 180 N.E.2d 530. We believe that the complaining party has a similar duty to direct the trial court's attention to a defective affidavit pursu......
  • Strate v. Strate, No. 670A98
    • United States
    • Indiana Court of Appeals of Indiana
    • May 26, 1971
    ...of motions, petitions, or complaints alleging such facts has often been treated as a second appealable judgment. Jurdzy v. Liptak (1962), 243 Ind. 1, 6, 180 N.E.2d 530, 532; Globe Mining Company v. Oak Ridge Coal Company (1922), 79 Ind.App. 75, 80, 134 N.E. 508; Miedreich v. Lauenstein (190......
  • Request a trial to view additional results

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