Urbana College v. Conway
Decision Date | 04 November 1985 |
Docket Number | No. 49466,49466 |
Citation | 29 OBR 14,502 N.E.2d 675,29 Ohio App.3d 13 |
Parties | , 36 Ed. Law Rep. 872, 29 O.B.R. 14 URBANA COLLEGE, Appellee, v. CONWAY, Appellant. |
Court | Ohio Court of Appeals |
Syllabus by the Court
1. Ohio courts must enforce the Soldiers' and Sailors' Civil Relief Act, Section 520, Title 50 Appx., U.S.Code, to provide service personnel with its safeguards.
2. To obtain relief from a default judgment, because the court did not comply with that federal statute, the serviceman must provide evidentiary materials which demonstrate a meritorious defense. For this purpose, an independent claim arising from the same transaction may be a valid counterclaim, but it is not a meritorious defense.
Marc R. Schwartzman, Cleveland, for appellee.
Marshman, Snyder & Corrigan and Anthony A. Cox, Cleveland, for appellant.
The defendant soldier appeals from the denial of his motion to vacate a default judgment, which the plaintiff college obtained more than three years earlier. He complains that the court abused its discretion by denying that motion without an evidentiary hearing. We disagree and affirm the trial court's order.
The college filed this action to recover allegedly unpaid tuition fees for extension courses taken by the serviceman. The clerk served the defendant by certified mail at an Arizona address listed on the complaint. Thirty-eight days after someone there signed the postal receipt, the defendant had made no response. Consequently, the plaintiff college filed its motion for a default judgment on September 25, 1981, together with its counsel's affidavit:
Four days later on September 29, 1981, the court granted the default judgment.
On October 13, 1981, the court received a letter from the defendant which was postmarked in Arizona on October 9. In that letter, which the defendant dated September 25, he said:
He enclosed a copy of his letter to Senator Goldwater dated September 6, in which he discussed and forwarded a copy of the college's lawsuit. On October 16, 1981, the court journalized its receipt of the defendant's letter as an "[a]nswer out of rule." Nothing further transpired in this case for approximately three years.
On October 10, 1984, counsel for the defendant serviceman filed a motion for relief from the 1981 judgment supported by the defendant's affidavit:
Less than a week later, the trial court denied that motion.
The defendant waited three years before seeking relief from the default judgment, despite his contemporaneous knowledge of the suit and the resulting judgment. Hence, Ohio procedural law affords him no remedy. Civ.R. 60(B) required him to file his motion within a "reasonable time," and within no more than one year in most situations. See Mt. Olive Baptist Church v. Pipkin Paints (1979), 64 Ohio App.2d 285, 289, 413 N.E.2d 850 (in the absence of evidence justifying the delay, a motion for relief from judgment is untimely on its face if filed more than four months after the judgment and more than seven months after actual notice of the lawsuit).
Instead, the defendant apparently relies on the federal statute which governs action against servicemen (Section 520, Title 50 Appx., U.S.Code):
Ohio courts must enforce the Soldiers' and Sailors' Civil Relief Act to provide service personnel with its safeguards. State, ex rel. Bartlett, v. Schneider (C.P.1944), 40 Ohio Law Abs. 112, 113; Willson v. Willson (Dom.Rel.1944), 40 Ohio Law Abs. 281; cf. Coburn v. Coburn (Fla.App.1982), 412 So.2d 947.
In this case, the serviceman correctly asserts that the trial court failed to comply by providing him with counsel before granting an adverse default judgment. Section 520(1), Title 50 Appx., U.S.Code; cf. In re Realty Assoc. Securities Corp. (E.D.N.Y.1944), 53 F.Supp. 1015, 1016. Thus, the serviceman could obtain relief from that judgment by invoking procedures established in the remaining provisions of that statute. Section 520(4), Title 50 Appx., U.S.Code; cf. Rentfrow v. Wilson (D.C.App.1965), 213 A.2d 295, 296; Swartz v. Swartz (Fla.App.1982), 412 So.2d 461, 462.
Like Ohio's Civ.R. 60(B), the federal statute requires the party seeking to avoid a judgment to demonstrate "a meritorious or legal defense." Section 520(4), Title 50 Appx., U.S.Code. Compare GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113 ,...
To continue reading
Request your trial-
Farmers Ins. of Columbus, Inc. v. Edward Rabbitt, 91-LW-4691
... ... 2d 146; Thompson v. Lowman (1958), 108 Ohio ... App. 453; Urbana College v. Conway (1985), ... 29 Ohio App. 3d 13. The court in Matson v ... Marks ... ...
-
Atac Corp. v. James L. Lindsay
... ... Moreover, in Urbana College v. Conway (1985), 29 Ohio App.3d ... 13, this court held that where the allegations ... ...
-
Mazepa, Inc. v. Julie Krueger
... ... same transaction, will not warrant granting relief from ... judgment. Urbana College v. Conway (1985), 29 Ohio ... App.3d 13. However in the case sub judice, the ... ...
-
Olsen v. Olsen
...court has held that Ohio courts must enforce the Act to provide service personnel with its safeguards. Urbana College v. Conway (1985), 29 Ohio App.3d 13, 29 OBR 14, 502 N.E.2d 675, paragraph one of the In Coburn v. Coburn (Fla.1982), 412 So.2d 947, the court held that it was improper to de......