Lee v. Benedict
| Decision Date | 07 June 1910 |
| Docket Number | 11946 |
| Citation | 82 Ohio St. 302,92 N.E. 492 |
| Parties | Lee v. Benedict |
| Court | Ohio Supreme Court |
Reviewing court to pass on alleged errors - On motion to vacate judgment - Requires finding of facts or bill of exceptions - Error for court hearing such motion to enter judgment, when.
1. To enable a reviewing court to properly pass upon alleged errors occurring at the hearing of a motion in the court of common pleas to vacate a judgment of a previous term for irregularity in obtaining such judgment, there should be presented a record including a finding of facts, or a bill of exceptions showing all the evidence given at the hearing.
2. Proper practice in such case requires that the court, upon the hearing of such motion, should first pass upon the ground of irregularity charged and if sustained and the defendant had shown what in law if established would be a defense, then order the judgment suspended until the cause should be tried on its merits. And it is error for the court, upon the hearing of such motion, to enter final judgment of vacation. Watson v. Paine, 25 Ohio St. 340; Follett v. Alexander, 58 Ohio St. 202, approved and followed.
From the very scanty record printed in this case it appears that the controversy between the parties originated in a suit before a justice of the peace, and was appealed to the common pleas, the petition of the plaintiff below, F. W. Benedict being filed in that court August 7, 1908. The party sought to recover the sum of one hundred and sixty dollars for commissions claimed to be due plaintiff for services rendered in and about the leasing of certain buildings in the city of Cleveland. No answer, or other pleading, having been interposed by defendant, and the cause standing on default the court of common pleas, on February 23 1909, rendered a judgment for plaintiff for the amount claimed with interest. On April 21, following, the defendant Louis J. Lee (plaintiff in error in this court), filed in the common pleas a motion to vacate and set aside the judgment rendered against him of February 23, 1909, and later, to-wit April 28, 1909, an amended motion seeking the same relief, the motion being based on section 5357, Revised Statutes, and the ground stated therein being irregularity in the manner of obtaining the judgment. That motion was heard and sustained May 5, 1909, the court thereupon rendering judgment against plaintiff for costs, and further adjudging: "And said judgment is hereby vacated...
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