Follett v. Alexander
| Decision Date | 22 March 1898 |
| Parties | FOLLETT v. ALEXANDER et al. |
| Court | Ohio Supreme Court |
Error to circuit court, Franklin county.
Action by Mrs. Follett against one Alexander and others. From a judgment of the circuit court affirming a judgment of the common pleas vacating a judgment by default, plaintiff brings error. Reversed.
The plaintiff sued the defendants in the court of common pleas to recover under that section of the gambling act which gives to the wife a cause of action for money lost by her husband at gaming. Her petition was filed December 23, 1893. January 20 1894, a demurrer was filed by defendants on the ground that it appeared on the face of the petition that the alleged causes of action were barred by the statute of limitations. A memorandum in support of the demurrer was filed with it. At the September term, 1894, to wit, October 10, 1894, the cause was submitted to the court, a jury being waived; and the court, finding that the defendants were each in default for answer or demurrer, upon consideration found for the plaintiff, and rendered judgment in her favor, and against defendants, for $879.05 and costs. At the April term, 1895 to wit, June 29, 1895, defendants filed a motion to set aside the default judgment on the ground that the same was taken without notice to the defendants or their counsel irregularly, improperly, and in violation of the rules of court. The motion averred that no entry was submitted to counsel for defendants; a demurrer duly filed, with memorandum in support, remained undisposed of, the same never having been pressed for hearing; the cause was never ready for hearing upon the facts, never noted for trial, never placed upon the bar lists from which assignments are made up nor ever put upon any of the printed assignments. On July 11, 1895, the motion was heard; and the court having found that plaintiff's attorney had received due notice of the filing of the motion, and that the motion was well taken, sustained it, and adjudged that the ‘judgment be, and the same is hereby, vacated, set aside, and held for naught.’ This judgment of vacation was affirmed by the circuit court, and it is to procure a reversal of the judgment of affirmance, and of the judgment of vacation in the common pleas, and the reinstatement of the original judgment, that this proceeding in error is brought.
Syllabus by the Court
1. The rendition of judgment for plaintiff, as upon default, where a demurrer has been duly filed to the petition, and remains undisposed of, is an ‘irregularity in obtaining a judgment,’ for which the court may, upon motion and a proper showing, vacate the judgment.
2. A motion setting forth the above facts is not a motion to vacate because the judgment was rendered ‘before the action regularly stood for trial,’ within the meaning of section 5357, Rev. St., and hence is not required to be made within ‘the first three days of the succeeding term.’
3. Upon the hearing of such motion, it is error for the court to enter a judgment of vacation before it has adjudged that there is a valid defense to the action.
Charles Follett and T. E. Powell, for plaintiff in error.
T. J. Keating, for defendants in error.
It is proper to say that no charge of bad faith is made against counsel who obtained the judgment. Other cases of like character were pending between the same parties, and it is probable that the demurrer and memorandum had been placed with the files in one of the other cases, and were for that reason overlooked. Nor was there failure to act promptly on the part of counsel for defendants. They...
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