Opinion
No. 28,498.
Filed December 22, 1949.
1. JUDGMENT — Default — Opening or Setting Aside — Motion for New Trial Sustained — Effect. — Where plaintiff obtained a money judgment by default and defendant's motion for a new trial was sustained, such order of the trial court granted a new trial, although it did not in so many words set aside the default and vacate the judgment, but it cannot be assumed that the court intended an idle thing, and, since it was a subsequent proceeding in the same action which was inconsistent with the judgment continuing in force, its effect was to set aside the default and vacate the judgment. p. 632.
2. JUDGMENT — Default — Opening or Setting Aside — Motion for New Trial — Not Proper Procedure. — Where plaintiff obtained a default judgment, a motion for a new trial would not be a proper attack on such judgment as there has never been a trial, and if the motion would be overruled, no question could have been presented on appeal by such ruling. p. 632.
3. JUDGMENT — Default — Opening or Setting Aside — During Same Term — Courts May Vacate Judgments on Own Motion. — Courts have the right and power to vacate default judgments at the same term on their own motion, and this power is unlimited. p. 633.
4. JUDGMENT — Default — Opening or Setting Aside — During Same Term — Courts May Vacate Judgments on Own Motion — Prohibition and Mandamus Do Not Lie. — Where trial court sustained motion for a new trial after plaintiff had obtained a default money judgment, what the court did it had jurisdiction to do notwithstanding that the motion for a new trial was of no effect, because courts have unlimited right and power to vacate judgments at the same term, and, therefore, the trial court's action cannot be disturbed by the Supreme Court through an action in prohibition or mandamus. p. 633.
Original action by the State of Indiana on the relation of Bradley Lawson against Hon. Joseph V. Stodola, Jr., Judge, Lake Superior Court, Room 5, to prohibit further proceedings in a certain cause, and to mandate respondent to expunge certain orders from the record.
Denied.
Fred Barnett, of Hammond, attorney for appellant.
This is an original action wherein the relator seeks to prohibit the respondent as Judge of the Lake Superior Court from proceeding further in a certain cause filed in Room 5 of the said Court, other than to strike out the motion for a new trial filed therein. The relator also seeks a mandate to compel respondent to expunge the order showing the filing of the motion and the subsequent order ruling on same.
Relator's petition alleges that on September 3, 1948, he obtained, by default, a money judgment in Room 5 of said Lake Superior Court against one Glenn Crooks; that on September 29, 1948, said Crooks filed his motion for a new trial of said cause which motion was sustained on November 15, 1948, and a new trial was granted.
Although the order of the court granted a "new" trial and did not in so many words set aside the default and vacate the judgment, we cannot assume the court intended an idle 1. thing. It would seem that his action was suggested by the motion for a new trial. It was a subsequent proceeding in the same action, which is inconsistent with the judgment continuing in force. 34 C.J., Judgments, § 546. Its effect was to set aside the default and vacate the judgment.
This being a judgment by default, it is relator's contention that the motion for a new trial was not proper as there had never been a trial. With this contention we must agree. Hoag v. 2. Jeffers (1929), 201 Ind. 249, 159 N.E. 753; Rooker v. Bruce (1908), 171 Ind. 86, 85 N.E. 351; Meyers v. State (1900), 156 Ind. 388, 59 N.E. 1052; The Ervin School Township v. Tapp (1889), 121 Ind. 463, 23 N.E. 505. Had this motion been overruled, no question could have been presented on appeal by this ruling.
It must be remembered however, that this order was made at the same term at which the default judgment was rendered. Due to this fact, the respondent had the right and power to vacate 3, 4. this judgment on his own motion. The power of the court over its own civil judgments during the entire term at which they are rendered, is unlimited. Livingston v. Livingston (1920), 190 Ind. 223, 130 N.E. 122; Wabash R. Co. v. City of Gary (1921), 191 Ind. 394, 132 N.E. 737. It follows, therefore, notwithstanding the motion for a new trial was of no effect, what the court did it had jurisdiction to do and cannot be disturbed by this court.
The petition of relator is hereby denied.
NOTE. — Reported in 82 N.E.2d 896.