Cantwell v. Cantwell

Concurring Opinion

Emmert, J.

It is quite apparent appellants action to set aside the default judgment was not brought under §2-1068, Burns’ 1946 Replacement, for he does not base it upon “mistake, inadvertence, surprise, or excusable neglect,...” Nor do I believe it was a petition appealing to the equitable powers of the court. There was an adequate remedy at law.

Appellant’s pleading is in substance and in fact a petition to vacate the judgment because of a mistake in the service of process at his residence, which mistake did not appear on the face of the record. A petition to vacate a…