Julien v. Lane

Remy, J. — In an action by appellee against appellants, judgment for appellee was rendered on default. No answer to the complaint was filed, and the evidence, if any was introduced, is not in the record. Appellants did not seek relief from the judgment on the ground of “mistake, inadvertence, surprise or excusable neglect,” under §135 of the Code of Civil Procedure (§423 Bums 1926) which provides that application for such relief must be “on complaint filed and notice issued,” but instead filed with the court their motion for a new trial. It has been repeatedly held by the courts of review of this state that where a judgment has been rendered on default, as in this case, there has been no trial within the meaning of that term, and that relief cannot be had *277 through, the instrumentality of a motion for a new trial. Ervin School Twp. v. Tapp (1890), 121 Ind. 463, 23 N. E. 110; Schneidt v. Schneidt (1919), 69 Ind. App. 666, 122 N. E. 588. It follows that no question is presented. Affirmed.