
    Kilmer v. McCormick.
    [No. 12,218.
    Filed February 23, 1926.]
    1. Judgment.—A default judgment was properly vacated where the summons for the defendant was served by leaving it at a place that never was the defendant’s residence, p. 216.
    2. Appeal.—Overruling a demurrer need not be considered on appeal when the court, made a special finding of the facts.— Where the trial court made a special finding of the facts, the action of the court in overruling a demurrer to the complaint or a motion to strike out the complaint need not be considered on appeal, p. 216.
    From Delaware Circuit Court; Clarence W. Dearth, Judge.
    Action by Adam McCormick against Richard D. Kilmer. From a judgment for plaintiff, the defendant appeals. Affirmed. By the court -in banc.
    
      W. A. Thompson, for appellant.
    
      Leffler, Ball & Leffler, for appellee.
   Dausman, J.

This action was instituted by Adam McCormick, the appellee here, to set aside a judgment rendered against him on default in favor of Richard D. Kilmer, the appellant here. A demurrer to the complaint, a motion to make the complaint more specific, and a motion to strike out the complaint were overruled. The defendant answered by general denial. On request, the court made a special finding of facts and stated conclusions of law thereon. Judgment for the plaintiff.

There is no controversy concerning the facts. Adam McCormick was an unmarried man and for many years had made his home with his sister in Delaware county. He went to the State of Iowa to the home of an uncle with the intention of procuring employment and remaining there. After his departure from Indiana, Richard D. Kilmer instituted an action against him in the Delaware Circuit Court on two promissory notes, and directed the sheriff, in writing, where .to serve the summons. The sheriff left a copy of the summons at the place where directed. That place was not and never had been the residence of the defendant. On that pretended service, the judgment sought to be vacated by the proceeding in the case at bar, was rendered on default. It is unnecessary to write an elaborate opinion. The law of the case is too well settled. Dobbins v. McNamara (1888), 113 Ind. 54, 3 Am. St. 626.

On the record in this case, the appropriate rule is that because the court found the facts specially, the ruling on the demurrer and the motion to strike out need not be considered. The motion for a new trial was properly overruled.

Judgment affirmed.  