Braden v. Hoffman
| Decision Date | 10 December 1889 |
| Citation | 46 Ohio St. 639,22 N.E. 930 |
| Parties | BRADEN v. HOFFMAN. |
| Court | Ohio Supreme Court |
Error to circuit court, Hamilton county.
Syllabus by the Court
1. An order of the court of common pleas, made on motion of the defendant, and vacating a default judgment, entered at a previous term, for irregularity in obtaining the same, is an order affecting a substantial right made upon a summary application after judgment, and may be reversed, vacated, or modified for errors appearing on the record.
2. Although the court may have decided that there is good ground to vacate on motion such judgment rendered on default at a preceding term, it is error to vacate the same before it has been adjudged that there is a valid defense to the action and if, on error, such adjudication is not shown by the record, it will not be presumed.
3. B at the January term, A. D. 1885, of the court of common pleas, recovered a judgment by default against H. At the next term H. moved to set aside the judgment for irregularity in obtaining the same, which motion was granted, the judgment vacated, and 10 days allowed in which to file answer. Held , this was error. Frazier v. Williams, 24 Ohio St. 625, followed and approved.
Harding & Moore , for plaintiff in error.
J. T. De Mar and W. C. Hicks , for defendant in error.
The plaintiff in error, Emma Braden, on an appeal from a judgment of a justice of the peace, recovered a judgment in the court of common pleas of Hamilton county, at the January term, A. D. 1885, against the defendant in error, John S. Hoffman, for the sum of $256.75, with interest thereon; the defendant in the action being in default for an answer or demurrer to the petition. At the May term, A. D. 1885, of the court of common pleas, to-wit, on the 11th day of June, the defendant moved the court to set aside the judgment; and thereafter, at the same May term, A. D. 1885, the following entry was made upon the journal of the court: ‘ Now come the said parties, with their respective attorneys, and thereupon this cause came on to be heard upon application of defendant for leave to amend his motion filed June 11, 1885, to set aside judgment, and for a new trial, by adding thereto the following as the grounds of said motion, viz.: ‘ Irregularity in obtaining said judgment, and mistake, omission, or neglect of the clerk; ’ and, it being made to appear to the court that there was irregularity in the obtaining of said judgment, it is ordered that said motion be amended accordingly; and thereupon said motion as amended coming on to be heard, the court having fully considered the same, it is ordered by the court that, on payment of all the costs in this court, judgment be and is hereby set aside, and ten days are hereby giving in which to file answer, to which plaintiff excepts.' The plaintiff below filed her petition in error in the circuit court, to reverse the order of the court of common pleas vacating the judgment entered at the previous January term. The circuit court affirmed the order of the court of common pleas, and it is now sought to reverse the judgment of affirmance, and the order of the court of common pleas.
The order of the court of common pleas sustaining the motion, and setting aside the judgment rendered at the preceding term, is to be deemed a final order, and therefore a proper subject of review on error. It was such ‘ an order affecting a substantial right, made upon a summary application in an action after judgment,’ as may, by a proceeding in error, be reversed, vacated, or modified for error appearing on the record. Rev. St. §§ 6707-6710; Hettrick v. Wilson, 12 Ohio St. 136; Taylor v. Fitch, Id. 169. As said by the court in Huntington v. Finch, 3 Ohio St. 447: ‘ The power of the court to set aside or vacate its judgments, subsequent to the judgment term, is governed by settled principles, to which the action of the court must conform, and for a departure from which any judgment or order may be subject to be reviewed and reversed, on proceedings in error.’
The main question, however, for consideration is, did the court below err in granting the motion, and in setting aside the judgment rendered at a former term? Under section 5354, subd 3,...
To continue reading
Request your trial