81 CA 1 | Ohio Ct. App. | Mar 9, 1982
This is an appeal from a default judgment entered by the Gallia County Court of Common Pleas in favor of the Farmers and Merchants State and Savings Bank, Montpelier, Ohio, plaintiff below and appellee herein, and against Raymond G. Barr Enterprises, Inc., Gallipolis, Ohio, defendant below and appellant herein. The following errors are assigned:
"I. The Court erred by failing to allow defendant to file an answer.
"II. The Court erred when it entered judgment without requiring the plaintiff to produce evidence."
On September 29, 1980, appellee filed a complaint in the court below seeking to recover the sum of $17,273.04 and interest due on a promissory note in the face amount of $25,000, the complaint averring the note had been executed through appellant's president and was in default. A copy of the note was attached to the complaint. Service of summons was made by certified mail on or about October 1, 1980.
On November 21, 1980, appellee filed a motion for a default judgment averring, inter alia, that appellant "has failed to answer or otherwise defend as to the complaint of the plaintiff." On February 24, 1981, appellee's counsel served upon appellant a notice, and filed the same, that a hearing on the default judgment motion was set for March 13, 1981.1
On March 11, 1981, appellant filed a motion to file an answer. At the previously scheduled hearing on March 13, 1981, at which counsel for the parties appeared, the court overruled the motion to file an answer, accepted an affidavit as to the amount due on the note and entered judgment in accordance with the prayer of the complaint.
Civ. R. 6 (B), in the part here pertinent, reads as follows:
"When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failureto act was the result of excusable neglect; * * *" (Emphasis added.)
Nowhere by motion, memorandum or argument does appellant advance a reason for failing to file an answer that would constitute "excusable neglect." Indeed, *44 the record is to the contrary to the existence of such. The transcript of proceedings reflects the following:
"MR. CALHOUN: So I don't know what occurred before that, but I did tender an answer with the motion.
"THE COURT: But you don't have any basis for any excusable neglect or anything that you know of at this time. Is that correct?
"MR. CALHOUN: That's correct."
Accordingly, the court did not abuse its discretion in overruling the motion to file an answer. The first assignment of error is overruled.
The thrust of appellant's second assignment of error is that the court erred in not requiring appellee to introduce competent evidence as to the sum unpaid on the note.
R.C.
The predecessor of R.C.
In Dallas v. Ferneau (1874),
The rule was otherwise with respect to tort actions. As observed by this court, with predecessor members, in AmericanBankers Ins. Co. v. Leist (1962),
"Under the express provisions of this statute [R.C.
Civ. R. 55(A) provides in the part here pertinent the following: *45
"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefor; * * * If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least seven days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties."
Given the statutory background respecting proof in default judgment hearings, we hold that the trial court did not err in its failure to conduct an evidentiary hearing inasmuch as the amount claimed due in the complaint was admitted and was not within the meaning of "damage" as that term is used in Civ. R. 8 (D) and 55 (A). (See Staff Note to Civ. R. 55.)
Accordingly, the second assignment of error is overruled and the judgment is affirmed.
Judgment affirmed.
ABELE, J., concurs.
GREY, J., dissents.