majority">Hanna, J.

Suit against appellants, before a justice. The summons was issued on tlie 13th, returnable on the 20th, and was served on the 18th, of February. Judgment by default, on the 20th. On the 27th, judgment set aside, on the motion of plaintiff, and trial set for March 9th; on that day, judgment again by default. In December, this suit was instituted in the Circuit Court, to set aside said judgment, and enjoin the plaintiff from collecting the same. Demurrer to complaint sustained. It is insisted that the orders, proceedings, and judgment of the justice, on and after the 20th, were void, for want of jurisdiction of the persons of the defendants— the present plaintiffs.'

There was not such jurisdiction of the person of the defendant, on the 20th, as authorized the rendition of the judgment of that date. The Court, having assumed then to render a judgment, the defendant was, for all the purposes of the motion afterward made, out of Court; and, consequently, the motion made on the 27th, to set aside such judgment, was improperly entertained, in the absence of notice to the opposite party, and the proceedings in setting aside the judgment and afterward taking a default were wrong. The case should have been continued before the rendition of the first judgment. The Michigan, &c. Railroad Company v. Shannon, 13 Ind. 171.

8. A. Huff and E. A. Greenlee, for the appellants.

But although the proceedings were thus wrongful, yet our system of practice appears, in many instances, to require an application to be first made to the Court which committed the error, before another tribunal can be called on to determine directly as to that question. The refusal of the justice, upon proper application made, to set aside the judgment, would have entitled the party to an appeal from such refusal, or decision. The complaint was therefore defective, and the demurrer properly sustained.

Per Ouriam.

The judgment is affirmed, with costs.

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