Dallin v. McIvor

39 N.E. 461, 140 Ind. 386, 1895 Ind. LEXIS 40

• Court: Indiana Supreme Court
• Decided: January 10, 1895
• Docket: No. 17,126
• Status: Published

Opinion

Hackney, J.

— This was an action by the appellant against the appellee, under section 399, R. S. 1894, tobe relieved from a judgment for $2,254.25 taken by default. The action, the judgment in which is in question, was by the appellee against the appellant and the Indiana and Lake Michigan Railway Company, to recover for work and labor performed, material furnished and moneys loaned in and about the construction of the railway of said company, and for the foreclosure of a mechanic’s lien upon said railway. In that action there was a dismissal as to the railway company, and a personal judgment for the amount stated as against the appellant.

Filed Jan. 10, 1895.

An appeal from the original judgment would have been within the jurisdiction of the Appellate Court, considering the amount involved, or, since the act of March 4, 1893 (Act 1893, p. 356), if the enforcement of said lien had continued a part of the proceedings.

The proceeding to be relieved from a judgment falls within the jurisdiction to which the original action belonged, and the appeal from such proceeding follows the jurisdiction of such original action. Parker v. Indianapolis Nat’l Bank, 126 Ind. 595; Ex parte Kiley & Slatterly, 135 Ind. 225.

The appeal herein is, therefore, ordered to be certified to the Appellate Court.