Opinion
No. 15,664.
Filed April 20, 1936.
APPEAL — Decisions Reviewable — Final Judgment — Setting Aside Default. — Judgment setting aside a default judgment, though rendered in a separate action for that purpose, is not a "final judgment," and, hence, no appeal therefrom is authorized.
From Lake Circuit Court; T. Joseph Sullivan, Judge.
Action by Clara Soil against Dewitt Soil to set aside a default judgment of divorce against her. From a judgment for plaintiff vacating the default judgment, defendant appealed. Appeal dismissed. By the court in banc.
C.L. Howard, for appellant.
Milo C. Murray, for appellee.
This was an action in the trial court upon the complaint of the appellee against the appellant to set aside a default taken against her in an action by the appellant against the appellee for divorce and to be relieved from the decree and judgment therein and to be permitted to appear and defend in said divorce action, it being alleged that said default and judgment were obtained by the appellant through the practice of fraud upon the court and the appellee herein.
There was a motion filed in the trial court to strike the complaint which was overruled, after which an answer in two paragraphs was filed, to the second paragraph of which there was a reply in general denial. Upon the issues thus made the court heard evidence and made a general finding for the appellee and entered a judgment that the "decree rendered on May 28th, 1931, in Cause No. 20800 of this court, entitled Dewitt Soil vs. Clara Soil, be and the same is hereby vacated and set aside." The record does not disclose any other or further proceedings except such as relate to the taking of the appeal herein.
The action of the trial court in vacating and setting aside the default and judgment in the said divorce action is not a final judgment from which an appeal is authorized by law. See O'Neil v. Hudson (1915), 59 Ind. App. 541, 109 N.E. 792; Woodard v. Killen (1925), 196 Ind. 570, 148 N.E. 195 and the numerous cases cited therein.
The record before us, therefore, discloses that we do not have jurisdiction except to dismiss the appeal, which we now do upon our own motion.
Appeal dismissed.