148 N.E.2d 78 | Ohio Ct. App. | 1958
This appeal comes to this court from an order entered in a special proceeding overruling defendant's petition (motion) to vacate a judgment after term under the provisions of Section
The case was tried by the court in the absence of the defendant on June 9, 1952, and a decree of divorce was ordered, granting plaintiff certain property, the decree being entered on the journal of the court on July 1, 1952, and a certified copy of the decree mailed to the defendant, which he received July 8, 1952.
The defendant filed his "petition" to vacate on July 1, 1955. The grounds set out as the basis upon which he seeks an order vacating such decree are founded upon Section
1. In not noting on the record the filing of the motion to advance.
2. In not setting out a time for the hearing of such motion.
3. In not putting on the record the court's ruling on the motion to advance.
4. In not notifying defendant the date the case was set for trial.
The defendant also filed an amended answer and cross-petition on July 15, 1955. The plaintiff was served on the petition to vacate by publication, and on March 12, 1956, the plaintiff filed a motion to strike defendant's petition to vacate, which *134 was overruled November 16, 1956. On April 11, 1957, after hearing evidence, the court entered its "special finding of fact and law denying defendant's petition to vacate," and on May 11, 1957, the court's decision, denying the petition, was journalized.
A motion for new trial was filed May 21, 1957, which was overruled July 26, 1957, which was followed by the filing of a notice of appeal on questions of law on August 14, 1957.
The defendant claims the following assignments of error:
"1. Said court committed error prejudicial to the rights of the appellant by its refusal to vacate, render null and void and of no effect, and to declare for naught the entry of judgment, decree and final order of divorce, and award to the appellee of all of appellant's property, journalized on July 1, 1952, after the appellant had duly filed his valid answer to the appellee's petition, and rendered without legal notice to the appellant of the day, hour, place of hearing and an opportunity to be heard, and to grant a new trial thereof, because it constitutes the denial to the appellant of the equal protection of the law, and deprives the appellant of his rights and property without due course of law, or due process of law, as guaranteed by Article
"2. That the finding and judgment of the court refusing to vacate the entry of judgment, decree of divorce and final order, journalized on July 1, 1952, and grant a new trial herein, is contrary to the manifest weight of the evidence.
"3. That the court committed error prejudicial to the rights of the appellant in failing to respect the defendant's inherent right to act as his own attorney in the conduct of the defense of his own case.
"4. The court committed error prejudicial to the rights of the appellant by overruling appellant's motion for a new trial."
Assignments numbers one, two and four are based entirely on the evidence and depend wholly on its sufficiency. From a careful examination of the record, there being credible evidence to support the conclusions of the court that no irregularity was established on the record, we are unable to find that the defendant *135 was prejudiced by the court's ruling. These assignments of error are, therefore, overruled. And (as the court found) any claim that the judgment was entered before the case regularly stood for trial, as a basis for seeking to vacate such judgment, must be filed within the first three days of the succeeding term at which the judgment was entered.
Assignment of error number three is likewise overruled because there is no evidence that the defendant was not permitted to act as his own lawyer.
The judgment of the court, journalized May 11, 1957, overruling defendant's "petition" to vacate judgment, is, therefore, affirmed.
One other question appearing in the record should be here considered and that is whether the notice of appeal, filed August 14, 1957, vested this court with jurisdiction of this appeal.
This is a special proceeding by which a party to an action seeks a new trial upon the vacation of judgment after term. Section
"The Court of Common Pleas or the Court of Appeals may vacate or modify its own final order, judgment, or decree after the term at which it was made:
"* * *
"(C) For mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order."
Section
Judgment accordingly.
HURD and KOVACHY, JJ., concur.