This is an appeal from a decision of the Court of Common Pleas, overruling defendant appellant’s motion to vacate a $10,000 default judgment, taken upon her failure to answer or otherwise appear and defend. Plaintiff’s claim is in tort, for negligence, to recover for injuries sustained in a parking lot collision between automobiles driven by the parties. The whole of her special damages сame to approximately $500.
By the motion to vacate, as supported by briefs, affidavits, and testimony, the defendant contends that her failure to answer was due to excusable neglect, and that she has a good and adequate defense that she ought to be permitted to plead, there being good reason justifying
The defendant was served on Friday, November 13, 1970. Since her husband had prior experience with litigation in connection with his business affairs, and since she had none, she gave the summons and complaint to him. He testified that he telephoned her insurance agent the following week and then forwarded the papers to the agent, in Cincinnati, at the latter’s request. Sometime lаter, Mr. Eisner again spoke with the agent by telephone, and was told that the papers had been received and were being sent to the insurance company. Mrs. Eisner testified that she thought the insurance company was going to do whatever was necessary in her defense.
Inexplicably, the papers were not received by the insurance company’s east side (Cleveland) office until, or aftеr, January 12, 1971, the date appearing on the Cincinnati postmark. On January 11th the default judgment had been received for journalization.
In due course the papers were forwarded to the insurer’s litigation department which, after but a short delay, referred the matter to counsel. The docket was checked, the default, discovered, and the motion to vacate, prepared.
The trial court overruled the motion, stating that in its view:
“* '* * in addition to forwarding the papers to the insurance agent or brokers, as the case might be, * # * the defendant also has an obligation to follow up and see what arrangements are being made by that agent,” (Emphasis added.)
“The trial court committed prejudicial error and abused its discretion in failing to grant defendant’s motion to vacate the default judgment as a matter of law. ’ ’
Specifically, she relies on Civil Rule 60(B), (1) and (5).
Civil Rule 55(B) provides that “If a judgment by default has been entered, the court may set it aside in accoi'dance with Rule 60(B).” Rule 60(B) reads, in part, as follows :
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceеding for the following reasons; (1) mistake, inadvertence, surprise or excusable neglect * * * or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for [reason] (1) * * * not more than one year after the judgment, order or proceeding was entered or taken * * *. 6 i * # J >
Save for minor stylistic differences and wholly inconsequential changes in enumeration, the five grounds for relief included within Rule 60(B) were taken nearly verbatim from Rule 60(b) of the Federal Rules of Civil Procedure. In addition to the two grounds just set out, relief is available if warranted by newly discovered evidence or as a result of the misconduct of an adverse party, or where a prior judgment, although not voidable of itself, should not be permitted to stand or given prospective application. Void judgments are expressly included among the grounds enumerated in the federal rule, but not in the Ohio rule, which also omits language (1) abolishing the writs of coram nobis, coram vobis, and auclita querela, and the bills of review and bills in the nature of a bill of review, and (2) providing that the rule has no effect on the power of the courts to grant relief in an independent action in certain cases.
While appellee urges that we look to prior Ohio law in construing Rule 60(B), sensibly,
£ í * * # a statute is adopted from another jurisdiction, in substantially the same language, the provisions so adopted * * * [should be] construed in the sense in which they were understood at the time in the jurisdiction from which they were taken.” Fiske v. Buder (C. C. A., 1942), 125 F. 2d 841 , 844.
If an overview of prior Ohio law is useful, as background, it would be hazardous, at best, were the Civil Rules given a narrow construction, making them accord with former practice, and not treated as an effort to rectify the inadequаcies of prior procedural law. Cf. Civil Rule 1(B) and the Staff Notes thereto.
Under prior Ohio practice, a court could vacate its final or interlocutory decisions during term, in the exercise of a sound legal discretion.
First Natl. Bank of Dunkirk
v.
Smith
(1921),
Had the Civil Rules not been adopted, appellant’s motion would have been determined under the Dunkirk rule. Nevertheless, Rule 60(B) is to be read in pari materia with Rule 6(C). Because “ [t]he effect of Rule 6(c) * * * upon the power of the court over its civil judgments [is] substantially similar to the effect which the abolition of terms of court would have had * * *” (Moore’s Federal Practice, supra, para. 6.09 [2], p. 1500.113; cf., Advisory Committee Notes (1946) and cases cited therein as illustrative), Rule 60(B) must be read as exclusive and, therefore, as effecting a significant liberalization of R. C. 2325.01, reflеcting the broad power inherent during term under pre-rule practice.
Insofar as material, R. C. 2325.01 provided that:
“The Court of Common Pleas * * * may vacate or modify its own final order, judgment, or decree after the term at which it was made;
“(0) For mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order;
“* * *; [or]
“ (Gr) For nnavoidahle casualty or misfortune, preventing the party from prosecuting or defending; £ £ # # * ? ?
As originally adopted, Federal Rule 60(b) рrovided that the court could “relieve a party or his legal representative from a judgment, order or proceeding
taken against him
through
his
mistake, inadvertence or excusable neglect” (emphasis added), and little more. Unlike R. C. 2325.01, this language clearly permitted relief, though judgment resulted from the movant’s own neglect, provided his neglect were excusable.
Cf., Andring
v.
Andring
(Cuyahoga Co., 1965),
However, the very clarity of the original rule rendered it too limited in scope, leading to the view that it was merely cumulative, and not exclusive, allowing relief where the writs of coram nobis, coram vobis, audita querela, or bills of review or bills in the nature of the bill of review would lie. See discussion, Moore’s Federal Practice, supra, Vol. 7, paragraph 60.13 et seq. and, in particular, paragraph 60.17 pp. 33 et seq. and 91, and cases cited therein. In redrafting the rule in 1946, abolishing the common law writs and chancery bills, and adding five additional grounds of relief, the Advisory Committee recommended amending this language, to broaden, not to limit its scope, concluding that
“The quаlifying pronoun ‘his’ [should be] eliminated on the basis that it is too restrictive, and that the subdivision should include the mistake or neglect of others which may be just as material and call just as much for supervisory jurisdiction as when the judgment is taken against the party through his mistake, inadvertence, etc.” (Advisory Committee Note, 1946.)
The Ohio rule should be construed as equally broad. Unlike pre-rule federal practice, Ohio practice hаs been founded on code pleading since adoption of the Code of Civil Procedure in 1853, (51 Laws of Ohio, 57 (1853);
cf.,
By comparison with Rule 60(B)(1), Rule 60(B)(5) is a residuary provision, a catchall meant to afford relief in the interest of justice, where relief would not be available under any of the other provisions of Rule 60(B), but which may not bе used as a substitute for any of them. Staff Notes to Rule 60(B).
Cf., Klapport
v.
United States
(1949),
If, technically, Civil Rule 60(B) is interdependent with those rules governing the availability of subsequent procedural relief, specifically, in this instance, Rule 6(B), slavish obedience to the strict letter of the rules would violate the express command of Civil Rule 1(B). The great bulk of federal case law has simply permitted such additional relief, sub silentio, where Rule 60(b) is satisfied in a 60(b) case.
Correspondingly, Federal Rule 60(b) (1) has beеn interpreted as a remedial rule to be liberally construed. Moore’s Federal Practice, supra, Vol. 7, paras. 60.22[2] and 60.22[3], pp. 247, et seq. During the quarter century since it was amended, it has been applied in innumerable cases involving a kaleidoscopic array of factual variations.
It has been held that relief in cases of unavoidable casualty or misfortune properly falls within the pro
Specifically, a motion to vacate has been allowed in a number of cases where thе default judgment was taken upon the movant’s failure to answer, or otherwise appear and defend or prosecute, resulting from a mix-up in the office of a statutory agent, an insurer, or counsel.
Tolson
v.
Hodge
(C. C. A. 4, 1969),
Relief has been denied where: (1) the judgment resulted from deliberate action, or the moving party or his attorney made an informed choice, but not the best choice
(Dal International Trading Co.
v.
Sword Line, Inc.
(C. C. A. 2, 1961),
Plaintiff has made much of the defendant’s seeming unwillingness to cooperate with her or her counsel prior to the commencement of litigation. The defendant was under no legal obligation to cooperate. Plaintiff had her remedies under our motor vehicle insurance laws and apparently elected not to pursue them. Such a showing does not preclude reliеf. Cf., Trueblood v. Grayson Shops of Tenn., supra (32 F. R. D. 190).
It is clear that the defendant did not contact her insurance agent, or her insurer, until she was served, months after the accident occurred. There is no indication that this contributed to the default. While the insurance company did take approximately ten days before referring the matter to counsel, default was by then an accomplished fact.
Because no appearance had bеen entered, the defendant was not entitled to notice of the default proceedings. Civil Rule 55(A). She had none. On Friday, January 22, 1971, plaintiff’s attorney obtained an order in aid of execution, which was filed with his affidavit on Monday, the 25th. The banks named in the order were served the following day; the defendant was not served until the 29th. Coincidentally, the motion to vacate was filed that same day, i. e., the 29th, and within 18 days after judgment. The motion could hardly have been filed sooner, and almost certainly would have been filed later had the papers never been found.
Nor have we any difficulty in concluding that the de
As noted, Mr. Eisner had experience in litigation in connection with his business. It appears that when an insurance company had been involved he had done just what he did here: he turned the matter over to his agent, having given the agent what he believed were the full details of the incident. In each instance, the company defended.
It was not unreasonable that the defendant should believe her husband had done all that was then necessary. A defense could have been interposed without any further action on their part. Civil Eule 11. At least in this county, there is a substantial delay between the time a suit is commenced, and the time a case will be called for trial.
Clearly, the pleadings, thе motion to vacate, the affidavits and evidence, if true, were sufficient to require a conclusion that a meritorious defense to the action was made out.
Cf.,
the test in
Livingston
v.
Rebman
(1959),
Plaintiff contends, however, that the appellant was required to show just what happened to the papers,
i. e.,
to strictly account for their temporary disappearance, to show whose fault it was that they were not promptly rеceived by the insurance company, and to demonstrate that such neglect, if any, was itself excusable. On cross-examination, and without objection, Mr. Eichard Lyons, an employee of the insurance company, was permitted to testify as to the substance of the agent’s knowledge of the matter. At best, the agent’s recollection was limited. It does appear that he received the paрers and turned them over to his “claims girl,” intending that they be forwarded in due
The federal courts have allowed relief even though the surrounding circumstances have not been, or cannot be, entirely explained (see, e. g., Trueblood v. Grayson Shops of Tenn., supra (32 F. R. D. 190); cf., Ledwith v. Storken (D. Neb., 1942), 2 F. R. D. 539, 542.
If Rule 60(B) is to be liberally construed, it should be applied to avoid inequity. Relief is аvailable in cases of unavoidable misfortune or casualty, and we conclude, therefore, that Rule 60(B) precludes relief, in an otherwise proper case, only if appellant’s personal inexcusable neglect was the efficient cause of the judgment taken against her. That is to say, in part, that the inexcusable neglect, if any, of appellant’s agents should not be imputed to her.
Cf., e. g., Barber
v.
Turberville, supra
(
In prаctice, relief has frequently been allowed in cases where conduct fell far short of that which would be expected of a person in the agent’s business or practice, under circumstances which would hardly be classified as excusable, as to him, given the specialized nature of his business or profession. See,
e. g., Trueblood
v.
Grayson Shops of Tenn., supra
(32 F. R. D. 190);
Robins
v.
Pitcairn
(N. D. Ill., 1940), 3 F. R. S. 60b. 21, Case 2.
Cf., Radack
v.
Norwegian American Line Agency, Inc.
(C. C. A. 2, 1963),
A party is not barred from relief by his agent’s (usually his attorney’s) unauthorized, deliberate (albeit innоcent) misconduct.
In re Gsand
(C. C. A. 3, 1946),
We have carefully examined the many related cases cited by the parties as illustrating the views of onr sister states. No good purpose would be served by discussing them extensively, save to note that when decided under rules actually analogous to Civil Rulе 60(B), they are in accord with our view of the matter, except where they may have taken a somewhat different position on imputed neglect, relying on their own prior procedural law. It is in light of the limitations of prior Ohio law that our decisions in
Andring
v.
Andring, supra
(
The individual defendant should hardly be caused to suffer simply to keep others on their toes because of a broker’s or insurer’s failure to conduct its business adequately, particularly where the defendant may be obligated to defend, or especially where, as here, the company subsequently attempts to reserve its rights to disсlaim liability under the contract. It was not necessary that appellant strictly account for the temporary disappearance of the papers, apart from the necessity of showing an apparent failure of justice in this case, for it was not necessary that she detail her broker’s neglect or show that his conduct was excusable. Consequently, the trial court erred in overruling the motion to vacate the default judgment.
Appellee argues that Rule 60(B) is one of discretion. Necessarily, that discretion is not an unbridled one. It is only a sound legal discretion. See,
e. g., Toser
v.
Charles A. Krause Milling Co., supra
(
While it appears that federal appellate courts rarely interfere with an order vacating a default judgment, they tend to subject a contrary decision to the closest scrutiny. It is axiomatic, under federal practice, that
“Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits.” Moore’s Federal Practice, supra, Vol. 7, para. 60.19, pp. 232-233. See, e. g., Bridoux v. Eastern Air Lines, supra (214 F. 2d 207 ), 210; Russell v. Cunningham (C. C. A. 9, 1960),279 F. 2d 797 , 804; Tolson v. Hodge, supra (411 F. 2d 123 ), 130; Horn v. Intelectron Corp. (S. D. N. Y., 1968),294 F. Supp. 1153 , 1155.
This is particularly so, as these cases serve to further illustrate, where (1) no substantial prejudice would result to the party in opposition, or (2) the amount of the judgment taken by dеfault is substantial in comparison with any resulting prejudice which, moreover, may be largely minimized in particular cases through the exercise of the trial court’s power to impose or condition relief upon just terms. Consequently, while the stability of judgments is adequately protected, the harsh and perhaps unjust burden of enforcing a default judgment may often and should be avoided — this being the essential reasoning underlying the rule frequently stated by the federal courts that, where a substantial sum of money is involved, a default judgment should be set aside, unless such a result is not reasonably avoidable.
As indicated, judgment was taken for $10,000, although
Accordingly, the judgment of the trial court is reversed and the case remanded with instructions that the default judgment be set aside, with further proceedings according to law.
Judgment reversed.