justice, order that any pleading be amended by correcting any mis-
take in name, description, legal effect, or in any other respect; or by
inserting, striking out, or modifying any material allegation, in order
that the pleadings may conform to the facts proved, where the amend-
ment will not deprive a party of any substantial right.

The court shall relieve a party from a judgment taken against him
through his mistake, inadvertence, surprise, or excusable neglect, on
complaint filed and notice issued, as in an original action within two
years from and after the date of the judgment.

This section amends section 405 Revised Statute 1914.

Trial courts have a large discretion as to setting aside defaults and relieving
parties from judgments, and such action will be reviewed on appeal only when such
discretion is abused. United States etc. Co. v. Poetker, 180 Ind. 255, 102 N. E.
372; Neat v. Topp, 49 App. 512, 97 N. E. 578.

If a non-resident who is notified by publication has no actual notice of the pend-
ency of the action, such want of notice may be sufficient cause for setting aside a
default. Gwinner v. Gary etc. R. Co., 182 Ind. 553, 103 N. E. 794.

Failure of a co-defendant to employ counsel to represent both defendants, when
cause for setting aside a default. Neat v. Topp, 49 App. 512, 97 N. E. 578.

When the advice of an attorney that no judgment could be rendered in an action
against a party will be sufficient to show an excuse for the failure of the party
to appear to the action, and will be cause for setting aside a judgment of default.
First Nat. Bank v. Stilwell, 50 App. 226, 98 N. E. 151.

The failure or negligence of an attorney employed to represent a party is not
usually a sufficient reason for setting aside a judgment by default. Vapinski v.
Tosetti, 53 App. 547, 102 N. E. 51; Houser v. Laughlin, 55 App. 563, 104 N. E. 309.
If there is evidence to support the finding of the trial court on an issue of fact
formed on an application to set aside a judgment by default, such finding will not
be reviewed on appeal. Costello v. Wallace, 184 Ind. 734, 110 N. E. 660; Peterson
v. Downey, 53 App. 373, 101 N. E. 737.

That the time given for a party to answer interrogatories was too short, is not a
sufficient excuse for permitting a judgment to be taken by default. Houser v.
Laughlin, 55 App. 563, 104 N. E. 309.

If a judgment is taken by default against a minor, the minor has two years after
arriving of age to make application to be relieved from the judgment. Macy v.
Lindley, 54 App. 157, 99 N. E. 790.

Under this section no form of pleadings is required in a proceeding for relief
from judgment taken by inadvertence or surprise, beyond the complaint or motion
of the party seeking the relief. Graves v. Kelly, 62 App. 164, 112 N. E. 899.

In view of this section and § 671, an order overruling a motion to set aside the
default judgment is not a final judgment from which an appeal will lie. Kurtz
v. Phillips, 63 App. 79, 113 N. E. 1016.

See notes to sections 400, 5780.

A school city discharging a note by one of the owners of land purchased is
entitled to subrogation and its suit therefor is not to obtain relief from a judg-
ment, etc., under this section and § 645. Conklin v. School City of South Bend,
App.
—, 124 N. E. 464.

An order dismissing a motion under this section to set aside a default judgment
rendered at a prior term is not appealable, not being a "final judgment" under
671. Indiana Travelers' Acc. Assn. v. Doherty, App. -9
121 N. E. 91.

What constitutes excusable neglect under this section is to be determined from
the facts of the particular case and doubts should be resolved in favor of the
application. Indiana Travelers' Acc. Assn. v. Doherty, App. 123 N. E. 242.

It is the imperative duty of the court to set aside default and permit a trial
upon the merits when it appears that defendant's failure to appear and defend
was due to his excusable neglect. Indiana Travelers' Acc. Assn. v. Doherty,
App., 123 N. E. 242.

This section is remedial and should be liberally construed and applied. Indiana
Travelers' Acc. Assn. v. Doherty, App., 123 N. E. 242.

A petition to set aside a judgment which in effect is merely an attack on the
ruling of the court denying a motion for a new trial does not come within this
section. Stampfer v. Peter Hand Brewing Co., — App. —, 118 N. E. 138.

Under this section a motion to set aside a judgment on the ground of fraud,
which fails to show the nature of the alleged fraud, or the parties thereto, was
properly denied for failure to show a valid defense. Stampfer v. Peter Hand
Brewing Co., App. 118 N. E. 138.

-

This section makes it the imperative duty of the court to relieve a party from a
judgment taken through his mistake, inadvertence, surprise, or excusable neglect.
Daub v. Van Lundy, App., 118 N. E. 140.

-

Independently of this section trial courts possess and exercise a very large
discretion in vacating judgments taken by default. Krill v. Carlson, App.
128 N. E. 612.

407. Judgment not reversed for technical errors.

The statute provides that appellate courts shall disregard all technical errors
when it appears that a case has been fairly tried and properly determined on the
merits. Volker v. State ex rel., 177 Ind. 159, 97 N. E. 422; Domestic etc. Coal Co.
v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99; March v. March, 50 App.
293, 98 N. E. 324; Chicago etc. R. Co. v. Murphy, 54 App. 531, 101 N. E. 829;
First Nat. Bank v. Ransford, 55 App. 663, 104 N. E. 604; Roback v. City of
Greenfield, 56 App. 263, 105 N. E. 163; Evansville etc. Co. v. Freeman, 57 App.
576, 105 N. E. 258, 107 N. E. 27; Helms v. Cook, 58 App. 259, 108 N. E. 147;
National etc. Ins. Co. v. Wolfe, 59 App. 418, 106 N. E. 390; Bronnenberg v. Indi-
ana etc. Tract. Co., 59 App. 495, 109 N. E. 784; Bliss v. Gallagher, 60 App. 454,
109 N. E. 215; Van Sant v. Wentworth, 60 App. 591, 108 N. E. 975.

Failure to file written instruments with pleadings. Volker v. State ex rel., 177
Ind. 159, 97 N. E. 422; Vulcan Iron Works Co. v. Electro etc. Co., 54 App. 28, 99
N. E. 429, 100 N. E. 307.

Facts stated in an exhibit filed with a pleading instead of in the body of the
pleading. Lehman v. City of Goshen, 178 Ind. 54, 98 N. E. 1, 710.

Evidence improperly admitted that did not affect the substantial rights of
parties. Romona etc. Stone Co. v. Weaver, 49 App. 368, 97 N. E. 441; Pulse v.
Spencer, 57 App. 566, 105 N. E. 263.

Instructions to a jury that are incorrect, when regarded as harmless errors
Cleveland etc. R. Co. v. Federle, 50 App. 147, 98 N. E. 123; St. Clair v. Princeton
Coal etc. Co., 50 App. 269, 98 N. E. 197; Prudential etc. Ins. Co. v. Sellers, 54 App.
326, 102 N. E. 894; Chicago etc. R. Co. v. Murphy, 54 App. 531, 101 N. E. 829;
Hoover v. Lewin, 56 App. 367, 105 N. E. 400; Prudential Ins. Co. v. Union Trust
Co., 56 App. 418, 105 N. E. 505; Mesker v. Bishop, 56 App. 455, 103 N. E. 492, 105
N. E. 644; Olds v. Lochner, 57 App. 269, 106 N. E. 889.

See note to sections 343, 350, 400.

Under this section and § 700, the Supreme Court can search the record in order to affirm a judgment, but under Supreme Court rule 22 the court can only consider the questions properly presented in appellant's original brief. Breadheft v. Cleveland, 184 Ind. 130, 110 N. E. 662.

Under this section and § 700, it is not ground for reversal, in an action for conversion, that there could be no conversion because the property was taken in pursuance of law. Drudge v. Citizens Bank of Akron, 64 App. 217, 113 N. E. 440. Under this section and § 700, if the evidence supports the findings, and the case was fairly tried, judgment will not be reversed, in the absence of an intervening error which deprived appellant of a substantial right. Timmons v. Gochenour, App., 117 N. E. 279.

Under this section and § 700, an error which does not deprive appellant of a substantial right is not ground for reversal. Kluge v. Ries, App. 117 N. E. 262. Objections to instructions which are purely technical and can not affect substantial rights, were not authorized on reversal under this section and § 700. Terre Haute, Indianapolis & Eastern Traction Co. v. Ellsbury, App. 121 N. E. 299. Where there is evidence to support every material averment of the complaint and it fully appears from the record that the cause was fairly tried and a correct result reached, judgment will be affirmed under this section and § 700, regardless of error in rulings as to evidence. Deep Vein Coal Co. v. Ward, App. 123 N. E. 228.

In an action to enjoin obstruction of land by adjoining owner, the overruling of a demurrer to paragraph of complaint demurred to on the ground that it constituted an attempt to vary or contradict the terms of the deed, was harmless under this section where instruction was granted on another paragraph on the theory that the land in dispute was a public highway by user. Donner v. Griffith, App., 122 N. E. 23.

Error not affecting the substantial rights of the appellant is not ground for reversal. Templer v. Thompson, App. —, 117 N. E. 936.

Under this section and § 2221, it was held that the error in permitting a leading question was technical in character and not sufficient to cause reversal. Indiana Utilities Co. v. Wareham, 118 N. E. 572.

- App.

Where after careful consideration of the entire record, the appellate court can not say that the correct result was reached and that errors in giving instructions were not harmful, that judgment must be reversed notwithstanding this section. Louisville & Southern Indiana Tract. Co. v. Cotner, App., 125 N. E. 78. Inaccuracy of statements in instructions not ground for reversal under this section where not tending to mislead the jury. Pittsburgh, C. C. & St. L. R. Co. v. Nicholas, App., 126 N. E. 443.

408.

Supplemental pleadings.

It is within the discretion of the court to permit the filing of supplemental pleadings, and when a supplemental complaint is filed, it, with the original complaint, constitutes the complaint in the cause. Muncie etc. Tract. Co. v. Citizens' Gas etc. Co., 179 Ind. 322, 100 N. E. 65; Cleveland etc. R. Co. v. Hadley, 179 Ind. 429, 101 N. E. 473.

Motions for leave to file supplemental pleadings need not be in writing Cleveland etc. R. Co. v. Hadley, 179 Ind. 429, 101 N. E. 473.

Setting up that since commencement of suit for relief from levied execution sale has been had thereon and asking relief therefrom is more a defect of form than substance and not a proper subject of amended complaint. Luckett v. Hammond, 124 N. E. 675.

Ind.

SEC.

ARTICLE 11.-FORMATION AND ORDER OF ISSUES.

SEC.

409. Calling of causes, completing is- 412. Issues of fact-When tried-Dam

sues.

410. Judgment on failure to plead

Exception.

409. Calling of causes, completing issues.

ages assessed.

If a party fails to make answers to interrogatories filed with pleadings within the time ordered by the court, his pleadings may be stricken out and judgment entered against him as by default. Houser v. Laughlin, 55 App. 563, 104 N. E. 309.

410.

Judgment on failure to plead-Exception.

See note to § 350.

Defendant's default after extension of time to answer is same as default in responding to summons. Ayrshire Coal Co. v. Thurman, - App., 127 N. E. 810. An order denying a motion to set aside judgment taken under this section is final and appealable. Ayrshire Coal Co. v. Thurman, — App. —, 127 N. E. 810.

Issues of fact-When tried-Damages assessed.

412.
See note to section 350.

SEC.

ARTICLE 12.-ISSUES.

418. Trial of causes, law and equity.

418. Trial of causes, law and equity.

Actions to contest the validity of wills are triable by jury. Crawfordsville Trust Co. v. Ramsey, 178 Ind. 258, 98 N. E. 177.

An action to recover money that has been received by the defendant and held in trust for the plaintiff, is not one in which a jury trial can be demanded. Camp v. Camp, 52 App. 250, 100 N. E. 478.

Questions of fact may be submitted to a jury in an equitable case. Chicago etc. R. Co. v. Myers, 57 App. 458, 105 N. E. 645, 107 N. E. 296.

An equitable suit for rescission is triable by the court under this section which may grant such relief as given to a court of chancery. Farrell v. Hunt, Ind. 124 N. E. 745.

After rescission of contract by the parties, action at law may be recover money, which case is triable by jury. Farrell v. Hunt,

N. E. 745.

If a cause is set for trial on a day for which witnesses are subpoenæed is continued to a future day, such witnesses must be subpoenaed for the latter day in order that a party may obtain a continuance because of their absence. Indiana Union etc. Co. v. Keyes, 177 Ind. 698, 98 N. E. 633.

Abuse of discretion in refusing a continuance was not established, where the attendance of the witness in question was not shown to be procurable within a reasonable time. Indiana Quarries v. Lavender, 64 App. 415, 114 N. E. 417, 116 N. E. 2.

420. Cause for continuance.

Continuance for absence of counsel is within the discretion of the court. Roberts v. State, 188 Ind. 713, 124 N. E. 750.

It is error to overrule a motion for a change of judge that is properly made, but when it appears that the party making the motion had no interest in the litigation, such error will be regarded as harmless. Stockton v. Ham, 180 Ind. 628, 102 N. E. 378, 103 N. E. 482.

A proceeding to set aside the probate of a will is a civil action, and a change of venue may be demanded. Fort v. White, 54 App. 210, 101 N. E. 27.

An application made to a court that granted a divorce to change the order made as to the care and custody of the children of the parties, is not an action in which a change of venue from the county can be demanded. Julian v. Julian, 60 App. 520, 111 N. E. 196.

Courts may adopt reasonable rules as to making applications for changes of venue, of which parties and their attorneys must take notice, and applications for changes that do not comply with such rules may be denied. Advance Veneer etc. Co. v. Hornaday, 49 App. 83, 96 N. E. 784.

When an application for a change of venue shows that the party did not learn of the existence of the cause for the change until after the time for making the application had expired under the rules of the court, such application is in time and the change should be granted. Federal Cement etc. Co. v. Korff, 50 App. 608, 97 N. E. 185.

Application for change of venue under this section can not be verified by a corporation's attorney not an executive or administrative officer. Southern Surety Co. v. Kinney, — App. —, 127 N. E. 575.

Under this section counter-affidavits are not permissible in an application for a change of venue in civil actions. Huffman v. State ex rel. Barton, App. 117 N. E. 874.

An affidavit for a change of venue on the ground of local prejudice and odium attaching to the defense, which recites the illness of the defendant as an excuse for delay in the application, was held sufficient under the statute and court rule requiring such application to be made before the case is set for trial, unless the facts on which it is based are discovered thereafter. Huffman v. State ex rel. Barton, - App. 117 N. E. 874.

Where, under this section, an affidavit for a change of venue is made based on bias, prejudice or interest of the judge, the court has no discretion in the matter, but is required to grant the change. Fidelity & Casualty Co. of New York v. Carroll, 186 Ind. 633, 117 N. E. 858.

The general or managing agent of a foreign corporation within this state is not an officer of the corporation within the meaning of this section and is not competent to make affidavit for change of venue on the ground of prejudice or bias of the