On Petition for Rehearing
Myers, J.Appellant, Acme-Goodrich, Inc., has filed a petition for rehearing in which it has set forth three grounds upon which it claims the court’s decision is erroneous.
First, it claims that the opinion states that a complaint to set aside a judgment must contain within the body of the complaint a- complete transcript of pleadings and judgment, which contravenes ruling precedents of the Supreme Court. The opinion follows most of the authorities cited by appellant and very clearly states that it is not necessary to set forth the pleadings, proceedings or entries in haec verba, but that the substance of them must be incorporated in the complaint to give a right understanding of the matters involved. Murphy v. Branaman, Adm. (1901), 156 Ind. 77, 59 N. E. 274; Wabash R. Co. v. Young (1900), 154 Ind. 24, 55 N. E. 853; Jamison, By Next Friend v. Lake Erie, etc., R.R. Co. (1898), 149 Ind. 521, 48 N. E. 223; Cain et al. v. Goda (1882), 84 Ind. 209.
Appellant also has cited the case of Cavanaugh et al. v. Smith (1882), 84 Ind. 380, 382, which was a suit to declare a divorce decree void because of a fraudulent service of summons. Aside from the fact that the statute under which a complaint for review of a judgment may be brought specifically prohibits a review of a divorce decree, and thus this case is not in point, the court held that a collateral attack on the judgment could be made in an answer to the complaint. In the opinion this statement is made:
*624“It is true beyond all question, that where it is made to appear in a proper manner that there was no jurisdiction of the person, the judgment will not be simply erroneous, but absolutely void.” (Emphasis ours.)
Appellant argues its second point that the opinion of the court sets forth a summary of facts alleged in its complaint, which included a complete copy of the complaint filed by appellee’s decedent in the trial court, the summons issued, the return of the sheriff endorsed on the summons, which it claims fails to show service on appellant, and a statement that appellant did not appear, and thereafter that the court entered a judgment against appellant in the sum of $2,500 and costs. Appellant claims that the opinion erroneously stated the complaint did not present a question to the trial court of error in the record, contrary to precedents of the Supreme Court. Again appellant cites the cases of Cain et al. v. Goda, supra and Cavanaugh et al. v. Smith, supra. It further cites the cases of Houk et al. v. Barthold (1880), 73 Ind. 21, Frazier v. Williams (1862), 18 Ind. 416, and State ex rel. Beckham, Sr. v. Vanderburgh Cir. Ct. (1954), 233 Ind. 368, 119 N. E. 2d 713. These latter cases are not in point, as they deal with Burns’ Ind. Stat., §2-1068, which is an entirely different statutory procedure for setting aside a default judgment on the grounds of mistake, inadvertence, surprise or excusable neglect.
This court upheld a judgment of the trial court which sustained a demurrer to a complaint to review a previous judgment on the ground that the complaint was defective because it did not set forth in the body thereof the judgment or enough of it in material substance so as to present the question of alleged error.
*625This brings us to the last contention of appellant, which is that this court failed to give a statement in writing of each substantial question arising in the record, referring specifically to the question of jurisdiction over the person of the appellant which arose in the original case. This was the principal question which appellant attempted to have the trial court review in its complaint to review. That complaint was tested by demurrer and found wanting. Thus, whatever question concerning the validity or invalidity of the service of summons in the original case could not be presented to this court because it was not properly presented by way of review in the court below. In sustaining the demurrer to the complaint for review for want of facts, the trial court eliminated any question on appeal to this court except as to whether it committed error in its decision. Since the cause was not presented “in a proper manner” to the trial court, this court cannot determine the question of service of summons.
Appellant has stated in its brief in support of its petition for rehearing that it has made an error in calling its complaint a “complaint to review a judgment”; that, in fact, it was merely an application to vacate and set aside a void judgment. Appellant has proceeded through the trial court and this court on the theory that this was a complaint filed under the statutory provision to review a judgment. Appellant cannot change its theory of the case at this late date. Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, ch. 56, §2784, p. 364, and cases cited.
Petition for rehearing denied.
Note. — Reported in 156 N. E. 2d 790.
Rehearing denied in 158 N. E. 2d 299.