492 N.E.2d 168 | Ohio Ct. App. | 1985
Defendant-appellant, Edward Davidson, M.D., Inc., appeals a judgment on an account, awarding $
Plaintiff filed the complaint September 12, 1984, with an attached statement indicating defendant owed $
"The trial court erred by granting plaintiff a default judgment summarily and without hearing although there had been a prior appearance by defendant in this case."
The proper procedure for holding a party in default is set forth in Civ. R. 55(A), which provides, in pertinent part:
"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 theapplication for judgment at least seven days prior to the hearingon such application. * * *" (Emphasis added.)
By filing for an extension to plead within the allotted time, defendant "appeared in the action" so as to trigger the seven-day notice requirement of Civ. R. 55(A). That notice requirement obviously was not met since the application for default judgment and the journal entry granting judgment were both filed November 30, 1984. See AMCA Internatl. Corp. v. Carlton (1984),
Since the entry of the default judgment was in violation of the provisions of Civ. R. 55(A), the judgment of the trial court is hereby reversed and the cause is remanded for further proceedings.
Judgment reversed and cause remanded.
QUILLIN and BAIRD, JJ., concur. *146