
    McCabe v. Tom.
    (Decided December 2, 1929.)
    
      Messrs. Christensen & Christensen and Mr. Pierre K. Chase, for plaintiff in error.
    
      Mr. Ralph Emery, for defendant in error.
   Lloyd, J.

Defendant in error, Frank W. K. Tom, hereinafter called plaintiff, commenced an action in the municipal court of Toledo to recover a judgment of $108.02 for alleged damage to his automobile resulting from a collision with the automobile of plaintiff in error, Clark McCabe, whom we will call defendant. The latter filed an answer and cross-petition therein denying the claim of the plaintiff and claiming that the collision was caused by negligence of the plaintiff which resulted in damage to his automobile to the extent of $200, for which judgment was asked. The trial resulted in a judgment for plaintiff in the amount claimed by him. From that judgment the defendant appealed to the court of common pleas. The proceedings necessary to perfect the appeal were properly taken, and the plaintiff filed his petition in the court of common pleas on May 23, 1929. The record in that court shows that the rule day for answer having passed, the court on July 15th granted the defendant two weeks time within which to answer. On August 2, after the time so allowed had expired, the defendant filed an answer, admitting the collision and denying the other allegations of plaintiff’s petition, and a cross-petition setting forth his alleged cause of action against the plaintiff. On August 12, 1929, an entry was made in the action by the court of common pleas to the effect that: ‘ ‘ This day came the plaintiff and the defendant came not but made default. And thereupon the cause came duly on for hearing and trial, and a jury was duly waived. ’ ’ The entry further shows that thereupon, in the absence of the defendant, a trial to the court was had, resulting in a finding and judgment for plaintiff in the sum of $112. On September 21, at the same term of court at which the judgment was rendered, the defendant filed a motion to vacate the judgment on the ground that it “Was entered as by default on August 12th, although an answer was on file at that time.” Thereafter, on October 17, 1929, the court granted this motion “on condition that defendant pay the costs that have accrued to date,” and ordered that “if the defendant shall not pay the costs heretofore accrued, then said judgment heretofore had herein shall be in full force and effect in law.” To this order of the court requiring payment of costs as a condition precedent to the vacation of the judgment, defendant excepted. The record shows that the costs taxed in the municipal court were $39.07, and to that amount must be added the costs then accrued in the court of common pleas.

On October 18th, defendant filed a.petition in error in this court alleging that the trial court “erred in making the vacation of said default judgment to depend upon the prior payment of the accrued costs by plaintiff in error,” and praying “that said judgment requiring plaintiff in error to pay costs, accrued to date, may be reversed and that he be restored to all things he has lost by reason thereof.” The word default as used in relation to a judgment so taken has a well-understood legal signification. A defendant to an action makes default when he fails to plead within the time allowed by law for that purpose, and although he may not plead as of right after rule day, or after expiration of any extension of time granted by the court, still a pleading so filed may not be ignored by the entry of a default judgment. As stated in Lunnun v. Morris, 7 Cal. App., 710, 95 P., 907, 909, “the general rule * * * in ordinary civil actions, appears to be that, where a party pleads before default entered, though out of time or without leave, if the plea be good in form and substance, his default cannot be entered while the plea stands. The proper practice in such case is to move to strike the plea from the files.” The following authorities are in accord with this conclusion: 7 Ency. of Pleading & Practice, 84; 15 Ruling Case Law, 665, Section 113; 34 Corpus Juris, 169, Section 382, and page 379, note 35; Reher v. Reed, 166 Cal., 525, 137 P., 263, 37 Ann. Cas. (1915 C), 737, note page 738; Leahy v. Wayne Circuit Judge, 144 Mich., 304, 107 N. W., 1060, 115 Am. St. Rep., 443; Edenfield v. Seal Co., Inc., 74 Mont., 509, 241 P., 227; Gutierrez v. Romero, 24 Ariz., 382, 386, 210 P., 470.

The answer and cross-petition filed by the defendant in the instant case put in issue the substantive facts alleged by plaintiff in his petition, and stated in proper form an affirmative cause of action against the plaintiff, and, having been filed prior to the judgment sought to be taken by default, the court of common pleas erred to the prejudice of defendant in requiring the payment of costs as a condition precedent to the vacation of the judgment.

The judgment so entered is therefore reversed, and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Williams and Richards, JJ., concur.  