Opinion
No. 17,491.
Filed November 21, 1946.
1. APPEARANCE — Acts Constituting — Motion to Strike Motion to Set Aside Default — Failure of Process Waived. — Where judgment was entered against defendant by default and thereafter defendant filed a motion to set the default aside, plaintiff, by moving to strike out defendant's motion on the ground that no notice of any kind was issued or served on her, entered a general appearance and thereby waived the failure of process. p. 103.
2. ABATEMENT AND REVIVAL — Jurisdiction of Person Challenged — Motion to Quash or Plea in Abatement Proper. — If plaintiff desires to challenge the jurisdiction of her person on motion of defendant to set aside the default judgment, because of defendant's failure to serve process or for defective process, her remedy is by a motion to quash or plea in abatement. p. 103.
3. JUDGMENT — Default Judgment — Setting Aside — Failure of Process Not Grounds for Striking Motion to Set Aside. — Failure of process is not grounds for striking a motion to set aside a default judgment. p. 103.
4. JUDGMENT — Default Judgment — Setting Aside — Application an Independent Action. — An application to set aside a default judgment will be treated as an independent action as required by statute, notwithstanding it is entitled as a part of the original action and designated as a motion. p. 104.
From the Marion Juvenile Court; Mark Rhoads, Judge.
Action by Lucille Hurst against William H. Gilmer, wherein a default judgment was entered against defendant. Thereafter defendant filed a motion to set aside the judgment because of mistake, inadvertence, surprise and excusable neglect, and plaintiff moved to strike out such motion on the ground no notice was served on him. From a judgment striking the motion to set aside the judgment from the files, defendant appealed, and plaintiff moved to dismiss the appeal.
Motion to Dismiss Denied and Judgment Reversed. By the court in banc.
Hall Cochrane, of Indianapolis, for appellant.
Leo X. Smith, of Indianapolis, for appellee.
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's 1934 Supp., and the Soldiers' and Sailors' Civil Relief Act of 1940.
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 plaintiff Lucille 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 1-3. 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's 1934 Supp.] requires such an 4. application to be by complaint and as an original action. However, this court has held that where an application to set aside a judgment is required to be by independent action, it will be so treated notwithstanding it is entitled as part of the original action and designated as a motion. Vail v. Dept. of Financial Institutions (1938), 106 Ind. App. 39, 17 N.E.2d 854.
Appellee asserts that appellant has failed in some respects to comply with the rules of this court in the preparation of his brief and the appeal should therefore be dismissed. However, we have been unable to discover any serious departure and have therefore considered this appeal on its merits.
Judgment reversed.
NOTE. — Reported in 69 N.E.2d 608.