24 Ind. 363 | Ind. | 1865
This was a complaint praying for a review of a judgment rendered by default in the Fountain Circuit
The appellant presents for our consideration the question, whether the Tippecanoe Circuit Court erred in giving leave to amend the complaint for review, and the appellee, by a eross-error, questions the action of that court in setting-aside the order of the Fountain Circuit Court, vacating the original judgment. It will be seen, therefore, that we are not called upon to consider some very novel questions which might have been raised upon the record before us.
After the Fountain Circuit Court had vacated the judgment sought to be reviewed, on motion in the case fox-review, there was little else to be accomplished by that case. A judgment for the costs of it only remained to be rendered to bring it to a close. But before that was done, the venue was changed, an affidavit therefor having been waived. Upon reaching the Tippecanoe Circuit Court, it was surely proper for that court to act upon a motion to set aside the order which had been irregularly made to
When the Tippecanoe Circuit Court set aside the irregular order of the Fountain Circuit Court, the case was then before it, as if that order had never been made, and the authority of the court to give leave to amend the complaint is expressly conferred by sections 97 and 591 of the code.
But it is contended that the proceeding brought to Tippecanoe county was an application for relief under section 119, and that the amendment made, introducing new matter, making a proper case for review, was, in fact, the commencement of a suit for review, which must have been commenced in the court where the original judgment was rendered, and could not be plainted in the Tippecanoe Circuit Court. 2 G. & H. 279. We cannot adopt that view of the complaint filed in the Fountain Circuit Court. It is true, as already stated, that the facts averred in it were not sufficient to obtain a review; at most, they would have only justified an application for relief under section 99. But that application is summary, by mere motion, upon a necessary showing, requires no complaint or pleadings, is made in the original cause, and, inasmuch as there could be no trial by jury upon it, there could be no foundation for a change of venue to another county, upon
The judgment is affirmed, with costs.