76 N.E.2d 684 | Ind. Ct. App. | 1948
The appellees, co-partners doing business as Cunningham Brothers, sued the appellant in the Ripley Circuit Court to recover damages to a delivery truck belonging to said partnership which resulted from a collision between said truck and an automobile belonging to and driven by the appellant. Proper service was had upon the appellant and seven days after the return date he was called and defaulted for failure to appeal. Immediately thereafter the cause was submitted to the court, evidence heard and a finding and judgment entered for the appellees in the sum of $1,174.50. Within a few hours thereafter the appellant appeared and filed a petition to set aside said judgment because of his mistake, inadvertence and excusable neglect in failing to appear and defend himself. A demurrer to this petition was sustained but the appellant makes no complaint of such ruling. He appeals however from the default judgment and assigns as error that (1) the decision of the court is contrary to law; *253 (2) the decision of the court is not sustained by sufficient evidence; and (3) the complaint does not state facts sufficient to constitute a cause of action.
In respect to the third assignment it may be said that prior to 1911 our civil code permitted a defendant, who had suffered a judgment to be taken against him by default, to appeal without first seeking to have such judgment and default set aside and assign the failure of the complaint to state facts sufficient to constitute a cause of action as grounds for reversal. Trippeer
v. Clifton (1912),
Since the code was amended in 1911, Acts of 1911, ch. 157, § 2, p. 415, § 2-1011, Burns' 1946 Replacement, our courts have uniformly held that the insufficiency of the complaint for 1. want of facts cannot be raised for the first time on appeal. Robinson v. State, supra; Pittsburgh, etc., R.Co. v. Home Ins. Co. (1915),
The appellant's first two assignments of error are grounds for a new trial and cannot be assigned independently. It is contended however that when a party has been duly summoned and 2-4. fails to appear until after final judgment has been taken against him there has been no trial and therefore a motion for a new trial will not lie and if such judgment is erroneous such error may be assigned independently on appeal. It has long been settled in this state that a final judgment entered on a failure of a party to appear does *254
not involve a trial within the meaning of the statute providing for new trials through timely motion. Hoag v. Jeffers (1929),
In the case before us the appellant makes no claim that the judgment is contrary to law because the court had no jurisdiction over the subject-matter. His sole contention is that the 5. complaint shows contributory negligence on the part of the appellees and the evidence upon which such judgment was rendered does not show otherwise as it must in an action to recover property damages. He says that by his default he confessed nothing more than the truth of the facts alleged in the complaint and if the complaint fails to state a cause of action, and the evidence fails to cure the defect, he confessed nothing upon which a valid judgment could rest. We think the appellant misconceives the legal effect of his default. In Fisk v.Baker (1874),
There are a number of cases in Indiana which recognize the right of an appellant who has appeared but *256
subsequently suffered a default judgment below, to assign the action of the court in refusing to give him a change of venue as independent error on appeal. The refusal to grant a change of venue upon proper application is ground for a new trial but on the theory that a default judgment involves no trial the decisions under discussion hold that such error may be assigned independently because the jurisdiction of the court over the subject matter is involved. If the application for a change of venue should have been granted the court lost jurisdiction of the case when it made its erroneous ruling denying the change. Thus, under the statute, the question was not waived by the default.Carson, Receiver v. Perkins (1940),
Finding no error, the judgment is affirmed.
NOTE. — Reported in
