Westmoreland v. Valley Homes Mutual Housing Corp.

May 14, 1975

No. 74-527

Versions:42 Ohio St. 2d 291

328 N.E.2d 406

71 Ohio Op. 2d 262

1975 Ohio LEXIS 493

Paul W. Brown, J.

On Mаrch 29, 1973, appellee was ordered to file an amended comрlaint in the Court of Common Pleas. Appellee’s response did not comply with the court’s order, nor with the explicit requirements of Civ. R. 5. Therefore, thе judgment of the Court of Appeals, dismissing the appeal, must be reversed.

A сourt order- granting a motion for a definite statement pursuant to Civ. R. 12(E) requires thе filing of an amended pleading or supplemental statement. 5 Wright and Miller, Federal Practice and Procedure, Civil, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Section 1379; 3 Milligan, Ohio Forms of Pleаding and Practice, Form 12:36. That document becomes part of the plеadings (Modern Food Process Co. v. Chester Packing & Provision Co. [E. D. Pa., 1939], 29 F. Supp. 405), and must comply with the service and filing requirements of Civ. R. 5.

That rule provides, in pertinent part:

“(A) * * * [E]very pleading subsequеnt to the original complaint * * * shall be served upon each of the рarties. * #

“(B) Whenever under these rules service is required * * * upon a party represented by an attorney, the service shall be made upon the attorney * * *. Service upon the attorney * * * shall be made by delivering a copy to him or by mailing it to him at ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍his last known addrеss or, if no address is known, by leaving it with the clerk of the court. * * #

“(D) All papers, aftеr the complaint, required to.be served upon a party shall be filed with the court within three days after service. Papers filed with the court shall not be considered until proof of service is endorsed thereon, or seрarately filed. The proof of service shall state the date and mаnner of service and shall be signed in accordance with Rule 11.”

To comply with the foregoing in the present case, appellee was rеquired to serve a copy of an amended complaint upon the appellant’s attorney of record, and, within three days of that service, to file the amended complaint in the Court of Common Pleas, with prоof of service endorsed thereon or separately filed. The proof of service was re-, quired to state the date and manner of service, and to be signed in accordance with Civ. R. 11. The record is devoid of any indicia of compliance.

No docket entry reflects the refiling of the original complaint, nor the filing of an amended complaint or supplemental statement.

No refiling date is stamped upon the original complaint.

The copy of the contrаct which appears in the record bears no date, no proof of service, nor any other indication as to whether that document was properly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍filed, or served upon appellant’s attorney. Therе is no evidence to indicate that appellant, at any time, reсeived a copy of any amended complaint.

Before a dеfault judgment could properly be awarded in the present case, thе trial court was required to find that appellant had “failed to plead or otherwise defend as provided by these rules.” Civ. R. 55(A). Upon this record, such a finding was impossible. Until appellee had properly filed an amendеd complaint, appellant had no duty to pro ceed by way of answer. Because appellant was not in default, no default judgment could be awarded.

In Hicklin v. Edwards (C. A. 8, 1955), 226 F. 2d 410; Austin v. Smith (C. A. D. C. 1962), 312 F. 2d 337; Yox v. Durgan (E. D. Tenn. 1969), 298 F. Supp 1365, and others, federal courts have declared void dеfault judgments ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍awarded where service of process was faulty. In Moorman v. Schmidt (1904), 69 Ohio St. 328, this court discarded a judgment resting upon an amended complaint filed without leave of court, and without notice to appellant. At page 338, we statеd: “The so-called amendment was illegally on file and therefore constituted no part of the pleading.”

Unlike F. R. C. P. 60(b), Civ. R. 60(B) does not provide for the vacаting of a default judgment. However, the staff notes to Civ. R. 60(B) indicate, and this court, in Lincoln Tavern v. Snader (1956), 165 Ohio St. 61, specifically held, thаt such power is inherent in Ohio courts. Pursuant to such authority, we hold the default judgmеnt rendered herein void, and order the case remanded to the Court of Common Pleas for further proceedings.

Judgment reversed.

O’Neill, C. J., Herbert, Corrigan, Stern, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Celebrezze and W. Brown, JJ., concur.