This is an appeal from an action to review a judgment for error under § 2-2604 et seq., Burns' 1933, § 428 et seq., Baldwin's 1934. There was judgment setting aside and vacating the original judgment.
Appellee moved to dismiss the appeal on the ground, that the judgment presently appealed from was rendered after the time had expired within which an appeal might have been taken from 1. the original judgment. The rule which appellee seeks to invoke applies to attempted appeals by the plaintiff in the action to review. Talge Mahogany Co. v. Astoria Mahogany Co. (1924), 195 Ind. 433, 141 N.E. 50, 145 N.E. 495; Watson's Revision of Works' Practice, Vol. 2, § 2225, p. 791. But it has no application to defendants in the action to review, since they were successful in procuring the original judgment and had no reason to appeal therefrom. The motion to dismiss is overruled.
The appellee, by his complaint to review, predicates error in the original trial upon the insufficiency of the complaint to state a cause of action, and upon the ground that, after he had appeared, he was defaulted for failure to plead to a third and fourth paragraph of complaint, and that the third and fourth paragraphs *Page 471 of complaint were based upon a new cause of action, and that, because of the default, the court had no jurisdiction of his person.
The fourth paragraph of complaint was dismissed after the default. The other three paragraphs are based upon the same cause of action.
After the original judgment was entered, and after the term at which it was entered, the appellee brought an action under § 2-1068, Burns' 1933, § 173, Baldwin's 1934, to be 2-6. relieved from the judgment and the default taken through mistake, inadvertence, surprise, or excusable neglect. This action was sufficient to direct the court's attention to any error there might be in defaulting the defendant, but the plaintiff was not relieved of the judgment and did not appeal. It would seem therefore that all questions of error concerning the default were adjudicated and finally determined in that action. There was no other motion to set aside the default. In Lambert v. Smith, State Fire Marshal (1939), 216 Ind. 226, 228, 229,23 N.E.2d 430, 431, it is said: "A complaint to review a judgment must show that proper objections or exceptions were reserved in the original proceedings to save the error subsequently sought to be corrected. Myer v. Minch (1910), 45 Ind. App. 495, 91 N.E. 32. This rule, of course, does not apply to cases in which the error is not waived by failing to except, as where the complaint does not state any cause of action or the court has no jurisdiction over the subject-matter. Davis v. Perry et al. (1872), 41 Ind. 305; Davidson v. King et al. (1875),51 Ind. 224." The latter statement, to the effect that the error in basing a judgment upon a complaint which does not state a cause of action is not waived, was obiter dictum in the case quoted from and was inadvertently made. The statute, § 2-1011, Burns' *Page 472 1933, § 115, Baldwin's 1934, in force since 1911, provides that where it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a cause of action, and no objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the insufficiency of the complaint. The only error not waived by failing to raise a question by demurrer or answer is that involving the jurisdiction of the court over the subject-matter of the action. Where a judgment is rendered without jurisdiction of the subject-matter or without jurisdiction of the person, the judgment is void and not merely erroneous, and it can be attacked directly or collaterally at any time. Where a party has been served with summons, and appears, and is afterward defaulted erroneously, the judgment is not void; it is merely erroneous. But unless there has been a motion to set aside the default, the error is not available in an action to review or on appeal.Baker v. Ludlam (1889), 118 Ind. 87, 20 N.E. 648. In Watson's Revision of Works' Practice, Vol. 2, § 2216, p. 781, will be found an exhaustive discussion of the practice governing actions of this type with ample citation of authority.
The plaintiff's complaint presents no reviewable error. It was error to overrule a demurrer to the complaint, and, since the facts are not in dispute, there was no sufficient basis for a judgment in favor of appellee.
Judgment reversed, with instructions to enter judgment for the appellant (defendant).
NOTE. — Reported in 33 N.E.2d 109.