Indiana State Board of Dental Examiners v. Fetrow , 68 Ind. App. 189 ( 1918 )

Ibach, J.

On December 11, 1914, appellee, being a resident of Miami county, filed bis appeal in the circuit court of that county under §6106 Burns 1914, Acts 1913 p. 340, §3, asking that tbe appellant board be required to sbow cause why a certificate entitling bim to practice dentistry in this state should not be issued.

Tbe record disclosed that a purported notice of sucb appeal was issued to tbe sheriff of Monroe county, Indiana, directing bim to serve tbe same upon Fred J. Prow, secretary and treasurer of tbe appellant board, which was done, as shown by tbe return of sucb sheriff on December 16,1914. On January 16, 1915, appellant board was defaulted and a decree rendered directing tbe clerk of tbe court to issue to appellee a license to practice dentistry ip this state upon tbe payment of tbe requisite fee. On February 8, 1915, at tbe same term of court, appellant, represented by tbe Attorney-General, filed its motion, together with bis affidavit in support of tbe same, praying that the default and judgment be set aside. This motion was overruled and an exception saved.

It is clearly apparent from the record that this is an attempted appeal from the ruling of the court in overruling the motion to set aside the default.

Appellee has filed a motion to dismiss the appeal upon the ground that the order appealed from is not a final judgment, and that there is no attempt to appeal from the judgment on default. Furthermore, that if it is an attempted appeal from the judgment on default, it is not brought within time. Kurtz v. Phillips (1916), 63 Ind. App. 79, 113 N. E. 1016.

1. 2. It appears from the record that while the motion to set aside the judgment by default was filed at the term at which the judgment was rendered, such motion was not ruled on until October 4, 1915, and more than 180 days after the judgment on default was rendered. A motion to set aside a default, unlike a motion for a new trial, does not have the effect of extending the time for the taking of an appeal. Thomas v. Thomas (1916), 61 Ind. App. 101, 110 N. E. 573, and cases cited; Treloar v. Harris (1917), 65 Ind. App. 22, 116 N. E. 590. It necessarily follows that án attempted appeal from the judgment on default would be without force, and, as under the case of Kurtz v. Phillips, supra, an appeal will not lie from the ruling on the motion to set aside a default, the questions sought to be presented cannot be considered. Appeal dismissed. Dausman, J. dissenting.

Note. — Reported in 119 N. E. 1004.