Westmoreland v. Valley Homes Mut. Housing Corp.
| Citation | 42 Ohio St.2d 291,71 O.O.2d 262,328 N.E.2d 406 |
| Decision Date | 14 May 1975 |
| Docket Number | No. 74-527,74-527 |
| Parties | , 71 O.O.2d 262 WESTMORELAND, Appellee, v. VALLEY HOMES MUTUAL HOUSING CORP., Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
A court order granting a motion for a definite statement pursuant to Civ.R. 12(E) requires the filing of an amended pleading or supplemental statement, which must comply with the service and filing requirements of Civ.R. 5.
On January 19, 1973, appellee, Guy T. Westmoreland, initiated an action in the Court of Common Pleas of Hamilton County against appellant, Valley Homes Mutual Housing Corporation. Appellee's complaint alleged the breach of an employment contract, and sought $26,875 in damages.
On February 20, 1973, appellant filed, pursuant to Civ.R. 12(E), a motion for a definite statement, to ascertain whether the contract upon which appellee relied was written or oral. On March 29th, the court granted the motion, and ordered appellee to file an amended complaint, with a copy of the contract attached thereto. Appellee responded, at a date which remains uncertain, by placing a copy of the contract in the file.
On June 15, 1973, appellant's counsel of record withdrew from the case.
On September 11, 1973, counsel for the appellee sent a letter by certified mail to appellant's statutory agent, to notify him that a default judgment hearing had been set for October 2, 1973. The letter was returned, bearing the notation 'unclaimed-returned to writer.' On October 3rd, appellee obtained a default judgment in the amount of $26,875, which was collected by levying execution on appellant's bank accounts.
Upon learning of the default judgment, appellant employed new counsel, who on October 16 filed, pursuant to Civ.R. 60(B), a motion in the Court of Common Pleas to set the default judgment aside. The Court of Common Pleas overruled the motion, and the Court of Appeals dismissed the appeal.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Morris G. Sullivan, Cincinnati, for appellee.
John P. Scahill, Cincinnati, for appellant.
On March 29, 1973, appellee was ordered to file an amended complaint in the Court of Common Pleas. Appellee's response did not comply with the court's order, nor with the explicit requirements of Civ.R. 5. Therefore, the judgment of the Court of Appeals, dismissing the appeal, must be reversed.
A court order granting a motion for a definite statement pursuant to Civ.R. 12(E) requires the filing of an amended pleading or supplemental statement. 5 Wright and Miller, Federal Practice and Procedure, Civil, Section 1379; 3 Milligan, Ohio Forms of Pleading and Practice, From 12:36. That document becomes part of the pleadings (Modern Food Process Co. v. Chester Packing & Provision Co. (E.D.Pa., 1939), 29 F.Supp. 405), and must comply with the service and filing requirements of Civ.R. 5.
That rule provides, in pertinent part:
'(A) * * * (E)very pleading subsequent to the original complaint * * * shall be served upon each of the parties. * * *
* * *
To comply with the foregoing in the present case, appellee was required to serve a copy of an amended complaint upon the appellant's attorney of record, and, within three days of that service, to file the amended complaint in the Court of Common Pleas, with proof of service endorsed thereon or separately filed. The proof of service was required to state the date and manner of service, and to be signed in accordance with Civ.R. 11. The record is devoid of any indicia of compliance.
No docket entry reflects the refiling of the original complaint, nor the filing of an amended complaint or supplemental statement.
No refiling date is stamped upon the original complaint.
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...raised in a timely objection. {¶ 43} A court has inherent authority to vacate a void judgment. See Westmoreland v. Valley Homes Mut. Hsg. Corp., 42 Ohio St.2d 291, 294, 328 N.E.2d 406 (1975). “Any court has inherent power to vacate a void judgment without the vacation being subject to a tim......
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...of process is needed before the court can render a valid default judgment. Westmoreland v. Valley Homes Mut. Hous. Corp. (1975), 42 Ohio St.2d 291, 293-294, 71 O.O.2d 262, 263-264, 328 N.E.2d 406, 408-409, and Gen. Motors Acceptance Corp. v. Kollert (1986), 33 Ohio App.3d 274, 275, 515 N.E.......
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...by the appellee are inapposite since they deal with the power of a court to set aside a void judgment. Westmoreland v. Valley Homes Corp. (1975), 42 Ohio St.2d 291, 328 N.E.2d 406. The judgment in the instant case was not void. The motion was only proper under Civil Rule 60(B)(1) and was no......