Chenoweth v. Chenoweth

64 Ind. App. 260 | Ind. Ct. App. | 1917

Dausman, J.

Appellee instituted this action against appellant for divorce, alimony and the custody of their child. There was personal service on appellant. On September 15,1915, he was defaulted and judgment was rendered, granting her'a divorce and alimony in the sum of $5,000 and the custody of the child. On February 11, 1916, the court overruled his motion to set aside the default, and he then filed his motion to modify the judgment by .striking out “the judgment for alimony” and that part of the decree giving her the custody of the child. On February 14, 1916, at a subsequent term, the court sustained his said motion to modify, and thereupon ordered and decreed that so much of the judgment as awarded the alimony and the custody of the child to appellee be annulled and set aside. The transcript was filed in the office of the clerk of this court on August 10, 1916. Appellee moves to dismiss on the ground that the appeal was not perfected within the time fixed by statute. §672 Burns 1914, Acts 1913 p. 65.

1. Appellant concedes that under the law as stated in. Kurtz v. Phillips (1916), 63 Ind. App. 79, 113 N. E. 1016, he could not have appealed from the action of the court in overruling his motion to set aside the default. He further concedes that if his said motion to modify had been overruled, then under the law as stated in Thomas v. Thomas (1915), 61 Ind. App. 101, 110 N. E. 573, he could have derived no advantage therefrom for the purpose of computing the time allowed for an appeal from the original judgment. But he contends that the action of the court in modifying the judgment-brings him within the case of Johnson v. Foreman (1899), 24 Ind. App. 93, 56 N. E. 254, and, therefore, that the statutory period within which his appeal might be taken from the original judgment should be reckoned from the day on which the modification was made.

This contention cannot be sustained. The case of Johnson v. Foreman, supra, differs radically from the case at bar. The facts of the Johnson case are that Johnson recovered judgment against Foreman; that long afterward and at a subsequent term Foreman’s motion to modify was sustained and the judgment was so changed as to deprive Johnson of his substantial rights as fixed by the terms of the original judgment; that Johnson treated the motion to modify and the action of the court thereon as a wholly independent proceeding, from which he appealed; and that his appeal was entertained. In the case at bar the modification of the judgment was by appellant’s own procurement and was decidedly favorable tp him. Apparently it relieves him from a judgment in the sum of $5,000 and favors him with the custody of his child. To presume that appellant is attempting this appeal for the sole purpose of reviewing the action of the court in modifying the judgment would be preposterous. However, there is no occasion to indulge a presumption. It appears from his brief on the motion to dismiss and from his assignment of error that in fact he is seeking to review only what is left of the original judgment. In this respect his case is like the case of Joyce v. Dickey (1885), 104 Ind. 183, 3 N. E. 252.

2. The rule is that where a judgment is modified in some material feature, such modification is in effect a new judgment, from which new judgment the party aggrieved may appeal; and in such case the time allowed for appeal is, of course, computed from the date of the modification. 3 C. J. 1050, §1047; Thomas v. Thomas, supra; Atkinson v. Williams (1898), 151 Ind. 431, 51 N. E. 721.

We hold that this appeal, being from the original judgment, and the transcript not having been filed within 180 days thereafter, cannot be entertained. Appeal dismissed.

Note. — Reported in 114 N. E. 988.