121 Ind. App. 659 | Ind. Ct. App. | 1951
It appears from the record herein that on the 14th day of June, 1940 appellant obtained a 'judgment against appellee for rent in the sum; of $165.00. On the 28th day of August, 1946 appellee became the owner of certain real estate by reason of the death of one Pearl Stalcup. In January, 1948 an amended com
On the 28th day of December, 1948, the 22nd judicial day of the November term of said court, appellee filed his verified motion to set aside the default and order taken against him in favor of appellant on the 11th day of October, 1948,'for the reason said order was taken against him through his mistake, inadvertence and excusable neglect, in that this “Defendant had no actual knowledge of the pendency of this action, that this action is for partition and this issues raised by defendant’s, Lelia Cavins Flaharty are collateral to the
On the 5th day of September, 1950, appellee filed his motion to redocket that cause and order his distributive share released to him. The court ordered notice to appellant. Appellant filed an answer in bar in which she set up the pertinent portions of the proceedings in this
From that judgment appellant appeals to this court. We will proceed to a consideration of the questions raised in the order they are presented by the briefs of the parties.
Appellant first contends the trial court erred in setting aside its order and judgment rendered during the September term of said court on October 11, 1948. In support of this she says the trial court heard no evidence and no notice was given her of the motion to set aside said judgment filed in the November term of said court. She contends the court was therefore without authority to set aside the judgment. Appellee’s motion to set aside the original judgment was brought under the provisions of § 2-1068, Burns’ 1946 Replacement, the pertinent provisions of which are as follows:
“The court shall relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, on complaint filed and notice issued, as in original actions within two (2) years from and after the date of the judgment, except where judgment on default has been rendered in a suit to quiet title to real estate in which case the complaint for relief from judgment on default shall be filed within one (1) year from and after the date of judgment quieting title, and if the complaint is not filed within the period of time herein prescribed, then the action shall forever be barred.” (Our emphasis).
We agree with appellant, therefore, that the court erred in setting aside its approval of Item 21 of the Commissioner’s Report, which is as follows:
“To Glenn Staleup by way of payment on judgment held by Lela Cavins Kirkhart (now Lela Cavins Flaharty), against him as shown in Judgment Docket 27 page 207 in said Clerk’s office, $252.67”
However, this error was cured by the order of Court made February 20, 1950 and hereinafter more fully discussed.
We likewise agree appellant was a proper party defendant in the partition suit. McClure v. Baber et al. (1939), 106 Ind. App. 359, 19 N. E. 2d 891; Schissel v. Dickson et al. (1891), 129 Ind. 139, 28 N. E. 540.
As heretofore stated, the record discloses that on the 20th day of February, 1950 the court, on its own motion, ordered this cause stricken from the files. In our opinion this constituted a dismissal of appellee’s action to set aside the original judgment.
On the 5th day of September, 1950 appellee filed what he denominated his motion to redocket said cause. His motion recites the facts-disclosed by the record and avers
In oúr opinion the trial court had no authority to set aside its order dismissing the cause of action presented by appellee’s action of December 28, 1948, after the close of the term of court at which said order was made. Papuschak v. Burich et al., supra. The only way that order could be set aside after the term closed was pursuant to § 2-1068, Burns’, supra, or for fraud. Here again the court sustained the motion to redocket without notice to appellant. Furthermore, nowhere in the motion is there any averment that the order of dismissal should be set aside because it was taken by reason of “his mistake, inadvertence, surprise or excusable neglect.” It does not allege fraud in the procurement of the order made on the court’s own motion. The trial court erred in its order and judgment of January, 1951.
. In view of the conclusion we have reached it is not necessary to consider other questions presented by appellant.'
For the reasons stated herein, the judgment is reversed with instructions for further proceedings in accord with the views herein expressed.
Note. — Reported in 101 N. E. 2d 820.