93 N.E.2d 772 | Ohio Ct. App. | 1949
On February 13, 1947, the defendant, appellant, recovered a judgment for $6,657.30 against the plaintiff, appellee, in the Court of Common Pleas of Hamilton County, Ohio, upon a cognovit note, without service of summons or notice of any kind upon him. An attorney, solicited by defendant, assuming to act under the authority contained in the note, entered the plaintiff's appearance and confessed judgment in his name.
On June 30, 1947, the plaintiff filed this action. He alleged that he had not been summoned or otherwise legally notified of the time and place of the taking of such judgment and that the cognovit note had been paid. He prayed that the judgment be vacated and set aside and for relief generally. The defendant answered admitting the procurement of the judgment in accordance with law and the rules of the court and then specially denied that any part of the debt had been paid prior to the entering of the judgment, but *293 alleged that $1,521.72 had been collected on the judgment. Subject to these admissions, the defendant entered a general denial.
It is admitted that at the trial of this action, the defendant raised the question of the jurisdiction of the court and moved for a dismissal of the action on that ground, and that the court overruled the motion. The defendant's contention was that the plaintiff's action was based on Section 11631 et seq., General Code, authorizing relief from judgments after term, and that such relief could not be obtained in an independent action, but that the remedy was by motion or petition in the action in which the judgment had been rendered. He pointed to Section 11635, General Code, as so providing.
When the defendant raised the question of the jurisdiction of the court at the trial, the court, on plaintiff's motion, directed a consolidation of this case with the case in which the judgment had been rendered, but no order to that effect was journalized at the time. After this appeal was filed, the trial court entered upon the journal an order of consolidation as of the date of the trial and the plaintiff moved in this court for a diminution of the record by the inclusion of thisnunc-protunc entry. This court having reached the conclusion that the law did not authorize or permit such a consolidation, and that the inclusion of such an order would encumber the record and serve no useful purpose, overruled the motion.
The trial court found that there was substantial evidence to support the plaintiff's allegations and thereupon suspended execution upon the judgment in the prior case pending the trial of the issues in that case on the merits. It is from that judgment that this appeal was taken.
The defendant assigns as error that the judgment *294 is manifestly against the weight of the evidence, but as we view the matter, the test in a case of this kind under Section 11631et seq., General Code, is whether there is substantial evidence of a legal defense to the action, thereby leaving the final determination of the issue to the trier of the facts at the new trial. We find substantial evidence to support the defense of payment and the finding of the court that no summons or notice had been served upon plaintiff in the prior action, and therefore, find that this assignment of error is not well founded.
We assume, as did defendant's counsel, that this is an action under favor of Section 11631 et seq., General Code, authorizing the Common Pleas Court to vacate or modify its judgment and grant a new trial after term, under certain circumstances. By Section 11631, General Code, it is provided that the Common Pleas Court may grant a new trial after term when a judgment is taken upon a warrant of attorney "for more than was due the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment." And by Section 11635, General Code, the procedure for obtaining a new trial under such circumstances is set forth as follows:
"The proceedings to vacate the judgment or order on the grounds mentioned in divisions four, five, six, seven, eight, nine and ten, of the first section of this chapter [Section 11631, General Code] shall be by petition, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and, if the party applying was defendant, the defense to the action. On such petition a summons shall issue and be served as in the commencement of an action."
The ground alleged for setting aside the judgment is that set forth in division nine of Section 11631, General Code. *295
The defendant contends that this remedy must be pursued in the action in which the judgment was rendered and that the Court of Common Pleas is without power or jurisdiction to entertain an independent action seeking such relief, and we assume he means that no act of waiver or consent of the parties could confer such jurisdiction — that such a judgment under all circumstances is utterly void. And he seems to be supported in this position by the opinion in the case of Shedenhelm v. Myers,
A reading of the opinion in that case causes us to concur with that court in the reversal of the judgment for the plaintiff, but we find ourselves in complete disagreement from it in the dismissal of the action because of lack of jurisdiction of the trial court to entertain it, and that disagreement is based on a difference in interpretation of the cases cited by that court to support its conclusion. All the cases cited, at least impliedly, support the opposite conclusion.
The case principally relied on in Shedenhelm v. Myers,supra, is Taylor, Assignee, v. Fitch,
After the District Court had dismissed the appeal, the plaintiff in error filed a petition in error in the District Court to reverse the same judgment from which he had unsuccessfully attempted to appeal. The District Court reserved that case for decision by the Supreme Court, and that was the second case considered in Taylor, Assignee, v. Fitch, supra. The Supreme Court affirmed the judgment of the Common Pleas Court entered in the independent action setting aside the judgment by default and reinstating the original action on the trial docket. It is manifest from this that the Supreme Court not only did not hold that the Common Pleas Court had no jurisdiction, but held that the judgment rendered in the independent action in that case was free from error.
There are certain expressions in the opinion in that case, which, wrested from their context and considered abstractly, can be said to be of doubtful meaning, but when considered in their setting and in the light of the conclusions of the court, the doubt disappears. There is nothing in the opinion inconsistent with the conclusion reached.
In Shedenhelm v. Myers, supra, it is said that Taylor,Assignee, v. Fitch, supra, has never been overruled. That is true, and as we construe Taylor, Assignee, v. Fitch, there is no reason for overruling it. In Shedenhelm v. Myers, it is said that Taylor, Assignee, *298
v. Fitch has been followed in numerous cases, and Coates v.Chillicothe Branch State Bank of Ohio,
We have been cited to no case holding that a trial court has no jurisdiction to hear an independent action for relief under Section 11631 et seq., General Code. We have found no such case. In Beaver v. Beardmore,
In Folliette v. Brett, 16 C. C. (N.S.), 452, 31 C. D., 624, the court held directly that "A petition to vacate a judgment after term may be filed as an independent action."
We find no error in the record, and the judgment is affirmed. As our conclusion is in conflict with the judgment ofShedenhelm v. Myers,
Judgment affirmed.
ROSS, P. J., HILDEBRANT and MATTHEWS, JJ., concur in the syllabus, opinion and judgment.