19 Ind. App. 633 | Ind. Ct. App. | 1898
— A judgment by default for $2,000.00 was rendered May, 29, 1896, in favor of appellant, in the court below, against appellee. This occurred at the May term of the court. At the next term, on June
The questions presented by these assignments are ably discussed and the respective views of opposing .counsel supported by numerous authorities. We are not, however, permitted to consider them for the reason, as urged by counsel for appellee, that the order of the trial court vacating the judgment and permitting appellee to answer the complaint, is not a final judgment, from which an appeal will lie. Appeals are only authorized by statute from final judgment. Section 644, Burns’ R. S. 1894 (632, Horner’s
Counsel for appellant relies upon Hines v. Driver, 89 Ind. 339,'in support of the proposition that the judgment below is one from which an appeal will lie. The facts in that case were as follows: At the November term, 1881, of the court below, in an action upon a promissory note, there was a judgment against the plaintiff in favor of defendant upon a counterclaim filed by him for $-. In April, 1882, the appellee filed in said court a complaint setting out the proceedings which resulted in the verdict and judgment against him as above, and demanding a new trial of the cause upon the ground that he had discovered new and material evidence since the close of the term
The appellants moved to dismiss the appeal for the alleged reason that the judgment was only an interlocutory order and not of the class of interlocutory orders from which an appeal may be taken to this court under section 646, R. S. 1881. The court held that the judgment ought to be reversed, that it was a final judgment within the meaning of section 632, R. S. 1881.
The proceedings were instituted under section 563, of R. S. 1881, and were.for a new trial upon the ground of newly discovered evidence. In the opinion the court cites eight Indiana cases; all of them were for a new trial on the ground of newly discovered evidence except one, which was to review a judgment because of new matter discovered since it was rendered. In none of them had judgment been rendered upon default, nor under the statute applicáble to the case before us. In the cases of House v. Wright, 22 Ind. 383, and White v. Harvey, 23 Ind. 55, overruled by the court in Hines v. Driver, supra, the proceedings were based upon newly discovered evidence. In Spaulding v. Thompson, supra, the appellants recovered judgment in the court below by default at the October term 1854. At the April term 1855, Thompson prayed to be relieved from the judgment taken against him on the ground that it had been rendered against him through surprise, inadvertence and the neglect of his
This case is identical with the one before us. It is cited in Melcher v. Fredenburg, 18 Ind. 180; Pleasants v. Vevay, etc., Turnpike Co., 42 Ind. 391; Wood v. Wood, supra; Slagle v. Bodmer, 58 Ind. 465; Frazier v. Williams, 18 Ind. 419; Phelps v. Osgood, 34 Ind. 150; Brumbaugh v. Stockman, 83 Ind. 583, 588; Kreite v. Kreite, 93 Ind. 583, 586; Sharp v. Moffit, Admr., 94 Ind. 240, and Baltimore, etc., R. R. Co. v. Flinn, 2 Ind. App. 63; Moore v. Horner, 146 Ind. 290, not in all of them upon the question before us, but still as a recognized authority.
In Melcher v. Fredenburg, supra, the following language is used: “This was an action by Fredenburg against Melcher and another, to be relieved from a judgment by default taken against him by Melcher. The judgment was set aside, and from that order the defendant appeals to this court. The appeal is premature, as is settled in the case of Spaulding v. Thompson, 12 Ind. 477, which case was in all respects like the present. The appeal is dismissed.”