7 Ind. App. 163 | Ind. Ct. App. | 1893
The appellant filed its complaint in the Grant Circuit Court, against the appellee, August 26, 1890, demanding damages for the breach of a contract. The appellee appeared and filed an answer of general denial, and also additional paragraphs of set-off and a counter-claim. On September 22, 1890, the appellant filed a reply of general denial to the answer of set-off and the counter-claim. Upon the issues thus formed the cause was called for trial, and the appellant filed a mo
Several errors have been assigned by the- appellant, but counsel have argued but one, namely, the overruling of the motion to set aside the judgment and default.
Section 396, R. S. 1881, provides, among other things, that “The court may also, in its discretion, allow a party to file his pleadings after the time limited therefor; and shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any proceedings, on complaint or motion filed within two years.”
This section requires the filing of a written complaint or motion in order to obtain relief from a judgment taken against a party through his mistake, inadvertence, surprise, or excusable neglect. Indianapolis, etc., R. W. Co. v. Crockett, 2 Ind. App. 136.
The record in this case does not contain any motion filed by the appellant. .The only record entry on the subject of the filing of such a motion reads as follows: “Comes now the plaintiff, by counsel, and moves the court to set aside the judgment and default herein, and, in support of which, file their three affidavits therefor in these words, to wit;” then follow the affidavits of the attorneys and the vice-
There are no questions presented for review on this appeal.
Judgment affirmed.
Davis, J., concurs in the result.