43363 | Ohio Ct. App. | Nov 12, 1981
This case is an appeal by defendant-appellant Ray E. Culbertson from the denial of a motion for relief from judgment by the Cuyahoga County Common Pleas Court. For the reasons adduced below the judgment is affirmed.
"restraining the Defendant, RAY E. CULBERSTON [sic], (1) from interferring [sic] in any way with the day to day operation of the Corporation; (2) from acting and holding himself out as an agent, employee, director, shareholer [sic], officer, or as holding any other direct relationship with the corporation; (3) from opening and maintaining any accounts in any financial institution on behalf of the corporation; (4) from continuing in his unlawful possession of Plaintiff's automobile; (5) from further diverting funds rightfully due and owing to the Corporation."
and asking (b)
"for a determination by this Court that they, ROBERT L. MILES and SCOTT K. MILES, are the bona fide stockholders of Brick Processors, Inc. and the duly elected directors and officers of same; and that the Defendant, RAY E. CULBERTSON, has no interest remaining in Brick Processors, Inc."
Plaintiffs also sought a permanent injunction against defendant's interference with the operations of the plaintiff corporation. The temporary restraining order was granted October 12, 1979.
After making several attempts to serve defendant — including serving the complaint on him in care of his attorney — service was accomplished by publication under Civ. R. 4.4.
Plaintiffs sought — and were granted on February 4, 1980 — a default judgment against defendant because he "failed to plead or otherwise defend"1 in the action. Plaintiffs were declared the bona fide stockholders of Brick Processors, Inc. and defendant was permanently enjoined "from interferring [sic] with the business operations" of Brick Processors.
On June 23, 1980, defendant filed what was styled a "motion to vacate" seeking relief from the default judgment contending that the trial court lacked jurisdiction over the defendant because service by publication was insufficient. The trial court overruled this motion in a judgment entry journalized August 21, 1980. Defendant did not appeal. Instead, *479 defendant filed another motion on October 10, 1980, styled "motion for relief from judgment and for leave to file an answer." Defendant again sought vacation of the default judgment again arguing, but in slightly more detail, that service was insufficient. This motion, too, was overruled. The judgment entry was journalized December 1, 1980.
From this judgment defendant appeals assigning two errors:
The defendant could have raised the fraud issue on this motion. He did not. Principles of res judicata prevent his raising it in a later motion.3
Judgment affirmed.
JACKSON, C.J., and PARRINO, J., concur.