Cautela Bros. Cement Contractors v. McFadden

• Decision Date: 10 October 1972
• Citation: 32 Ohio App.2d 329,291 N.E.2d 539,61 O.O.2d 506
• Parties: , 61 O.O.2d 506 CAUTELA BROS. CEMENT CONTRACTORS, Appellee, v. McFADDEN et al., Appellants.
• Court: Ohio Court of Appeals

Page 329

32 Ohio App.2d 329

291 N.E.2d 539, 61 O.O.2d 506

CAUTELA BROS. CEMENT CONTRACTORS, Appellee, v. McFADDEN et al., Appellants.

Court of Appeals of Ohio, Tenth District, Franklin County.

Oct. 10, 1972.

Syllabus by the Court

1. A motion for relief from a judgment made upon the grounds that the plaintiff fraudulently took judgment is predicated upon Civ.R. 60(B)(3) and is barred if not made within one year after the judgment.

2. A motion for relief, from a cognovit judgment entered without prior notice, alleging defenses of payment, failure of consideration and fraud in the inducement is predicated upon the existence of valid defenses to the plaintiff's claim, is founded upon Civ.R. 60(B)(5), and is not necessarily barred if made more than one year after the judgment; however, such motion must be made within a reasonable time, which may be more or less than one year depending upon the circumstances.

Lucas, Prendergast, Albright, Gibson, Brown & Newman and W. James Hutchins, Columbus, for appellee.

Martin S. Goldberg, Youngstown, and Paul W. Brown, Columbus, for appellants.

STRAUSBAUGH, Judge.

This is an appeal from an order by the Franklin County Municipal Court overruling a motion to vacate a cognovit judgment.

The record shows that a cognovit judgment was rendered on the note in question in the trial court on October 19, 1970, and a notation made as follows: 'Notice of Judgment Mailed.' The docket further shows that on November 18, 1970, certificates of judgment were filed in the Common Pleas Court of Franklin County; that orders for the production of books and records were made on December 2, 1970, February 11, 1971 and February 22, 1971; that an affidavit in aid of execution was filed February 2, 1971; that orders were issued for the appearance of the judgment debtor on September 20, 1971 and October 21, 1971.

On December 30, 1971, the defendant filed a motion for relief from final judgment, a motion for leave to file an answer and cross-claim and a tendered answer with a cross-claim in which answer defendants denied indebtedness to the plaintiff and claimed the following:

'(The note signed) was induced by the fraudulent misrepresentations of the plaintiff, and was without consideration, in that the plaintiff failed to perform the services for which said note was rendered. Further, that the plaintiff obtained payment in full for all services which were performed and failed to give the defendant credit for said payments, and failed to cancel said note, but rather knowing that they had been paid in full, fraudulently took judgment on said note.'

The trial court ruled as follows:

'* * * Judgment herein was rendered on a cognovit note, and proceedings in aid were filed on serveral occasions during the period from 10-19-70 to 12-1-71-this is a period which covers more than one year. There is also an indication that negotiation, discussion and meetings were held after the judgment was rendered. There seems to be no doubt that defendants were aware of the judgment and did nothing about it for more than one year. Defendants' motion is based upon fraud, misrepresentation, failure of consideration, and full payment of the note. Such defenses are inconsistent when read together, and there is a lack of continuity throughout the arguments of the defendants. This Court does not wish to deprive the defendants of any rights, claims, causes of action or relief and this Court, by this ruling, does not preclude or eliminate or adversely affect any of defendants' considerations in their business relations with this plaintiff. However, there appears to be no basis for the Motion to set aside and vacate the Judgment and accordingly, the defendants' motion is overruled. Exceptions of defendants are noted.'

It is from this order of April 21, 1972, that defendants appeal. Defendants' assignment of error is that:

'The Municipal Court abused its discretion in failing to pass upon the tentative validity of the appellants' proffered defense; in failing to conditionally vacate the judgment taken under warrant of attorney; in...