LEPSCH v. MARLOWE

CLEMENTS, J.

This is an appeal from the refusal of the Sullivan Circuit Court to set aside a default judgment.

On October 3, 1958, the Sheriff of Sullivan County, finding no one at home, left a copy of a summons and complaint at the defendant-appellant's usual or last place of residence. At the time the suit was filed and at the time of the trial, this was statutory notice to the appellant. Section 2-803, Burns' 1946 Replacement.

January 7, 1959, with no appearance by defendant-appellant either in person or by attorney, a default was taken, and upon plaintiff-appellee's evidence the court rendered a default judgment against appellant in the amount of $6,800.

January 28, 1959, during the same term of court, appellant, by her attorneys, appeared specially and filed a verified "Motion to Set Aside Default Judgment" in which she alleges that "she at no time received any notice, summons, or information of the filing or pendency of said action." (Our italics.) Appellant contends that she had no knowledge or information of the action and that she was taken by surprise.

Notice of the filing of the "Motion" was issued January 28, 1959, and was served on plaintiff-appellee by the Sheriff. Appellant used the same statutory copy service on appellee that she complains of in her action to set aside the default judgment taken against her.

On January 30, 1959, hearing was had on appellant's "Motion," some evidence was submitted and the cause continued. On various subsequent dates further evidence was heard, and on February 11, 1960, the hearing of evidence was completed and the cause taken under advisement.

On March 3, 1960, the trial court entered its order which, omitting formal parts, is as follows:

The evidence favorable to the appellee is as follows:

Appellant resided at 128 Delaware Street, Shelburn, Indiana, and worked each day except Thursdays and every other Sunday at Arnold's News Agency in Sullivan, Indiana. That the Sheriff, finding no one at the defendant-appellant's residence, left the complaint and summons at appellant's place of residence between the screen and door on October 3, 1958. That thereafter appellant received a registered letter from appellee's attorney; that plaintiff-appellee's attorney personally called upon her at her place of employment; and that her employer told her that he had seen her name in the paper.

On cross-examination appellant made the following statement:

From the evidence in the record before us, the trial court could reasonably have inferred that appellant had some information of the pendency of the law suit and was not taken wholly by surprise.

Appellee, by his brief, raises a proposition, supported by authorities, that is more damaging to appellant than the fact of lack of notice or information of the pendency of the original action. We now consider appellee's proposition that since no motion for new trial was filed, setting forth the errors arising out of the trial of appellant's action to set aside the default judgment, that no question is presented in this appeal.

Appellant in her brief states:

Appellee in his brief states:

We said in Morgan v. Sparling (1953), 124 Ind.App. 310, at page 314, 115 N.E.2d 514 (Transfer denied):

Appellant, appellee and the trial court treated the proceedings as an independent action to set aside a default judgment under § 2-1068, supra. We adopt their theory.

Appellant presents her case to this court on the following assignment of errors:

A default judgment can be set aside either during or after the term under the provisions of § 2-1068, supra, which provides for relief "on complaint filed and notice issued, as in original actions, ...." Walker v. Sokol (1952), 122 Ind.App. 664, 667, 105 N.E.2d 339 (Transfer denied); Flaharty v. Stalcup (1951), 121 Ind.App. 659, 665, 101 N.E.2d 820; Hessong v. Wolf (1926), 85 Ind.App. 581, 584, 151 N. E. 15 (Transfer denied).

Although appellant's application was designated a "Motion," "[t]his court has held that where an application to set aside a judgment is required to be by independent action, it will be so treated notwithstanding it is entitled as a part of the original action and designated as a motion." Walker v. Sokol, supra, at page 669 of 122 Ind. App.; Gilmer v. Hurst (1946), 117 Ind.App. 102, 104, 69 N.E.2d 608.

In State ex rel. Beckham, Sr. v. Vanderburgh Cir. Ct. (1954), 233 Ind. 368, at page 371, 119 N.E.2d 713, our Supreme Court said:

A proceeding brought under the provisions of § 2-1068, supra, is a new and separate action, presenting new and different questions of fact for the court's determination and a trial is contemplated. State ex rel. Beckham, Sr. v. Vanderburgh Cir. Ct., supra, at page 371 of 233 Ind.; Walsh v. H.P. Wasson & Co., Inc. (1938), 213 Ind. 556, 558, 13 N.E.2d 696; Walker v. Sokol, supra, at page 669 of 122 Ind. App.

It is pointed out and urged by appellee that no motion for new trial was filed setting forth the errors arising out of the trial of appellant's action to set aside the default judgment, with the result that no question is presented in this appeal. With this contention we are compelled to agree.

Rule 2-6 of the Supreme Court provides, in pertinent part, as follows:

Appellant's assignment of errors presents no question to this court and the judgment of the trial court will be affirmed.

Judgment affirmed.

Cooper, C.J., Carson and Ryan, JJ., concur.

NOTE. — Reported in 189 N.E.2d 116.