
    Bulkley v. Greene.
    
      Judgments — Petition to vacate — Pleading and procedure — Section 11636, General Code — Trial by jury — Grounds to vacate — Section 11635, General Code — Counterclaim.
    
    1. When a petition to vacate a judgment is filed by a defendant, he
    must present therewith his defense to the action sought to be vacated. The grounds for vacation are heard and determined by the court upon the preponderance of the evidence, and if the defense is adjudged legally valid, and the grounds be sustained, the order of modification or vacation of the former judgment is held in abeyance until the final determination of the issues joined in the original action.
    2. If the court, under the provisions of Section 11636, General
    Code, decides the preliminary issue in favor of the defendant and sustains his ground for vacation, the issues of fact joined in the original action are triable to a jury, or to the court if not a jury issue or a jury be waived.
    8. A counterclaim cannot be made available under Section 11635, General Code, as a basis to vacate a judgment by confession. Such is not a defense to the action within the purview of that section.
    (No. 15579
    Decided April 2, 1918.)
    Error to the Court of Appeals of Franklin county.
    On April S, 1916, F. F. Greene obtained a judgment against Lorenzo H. Bulkley on the latter’s warrant of attorney, in the sum of $719. At the following term, May 23, 1916, Bulkley filed his petition in the common pleas court alleging the fact that judgment by confession had been taken against him, he not having been summoned or legally notified to appear at the time and place of taking such judgment. In his petition he sought a suspension and vacation of that judgment on the ground that the amount of the judgment “was more than was due the plaintiff.”
    In connection with his petition for vacation the plaintiff alleged that he had three valid defenses, which he presented:
    1. That the note was taken without consideration and was signed for Greene’s accommodation solely.
    2. That the judgment note was given to secure an installment of purchase money due April 1, 1916, for land sold to Bulkley by Greene, and that by the terms of a written contract between them Bulkley had the election either to pay the note, or not, as he chose, and to forfeit any payments made prior thereto.
    3. That in order to induce Bulkley to sign the judgment note and to pay previous installments for the price of the land purchased Greene had made false and fraudulent representations to the purchaser relative to the fertility and productiveness of a part of the land for grain-raising purposes, and that the purchaser was to obtain the property at a price which it cost the seller; that by reason of the representations on the part of Greene the plaintiff Builder was damaged in the sum of $1,000.
    Execution having issued on the cognovit judgment plaintiff asked m his petition that the judgment be vacated, and the sheriff restrained from levying execution on the property pending the determination of the defenses set forth. Issues were joined by the parties, not only on the ground set forth for vacation, but also on the defenses set forth in the petition for vacation. The trial court heard the case without the intervention of a jury, and found, as it appears from the journal entry, as follows:
    “This day this cause came on to be heard upon the petition of plaintiff, the answer of the defendant, the reply of the plaintiff thereto, the exhibits and the evidence, and being submitted to the court, and the court being fully advised in the premises do find on the issues joined in favor of the defendant. The court further find that plaintiff is not entitled to the relief sought in his petition, and the same is therefore denied and said petition dismissed,” etc.
    The court of appeals having affirmed the judgment of the trial court, error is now prosecuted to this court for reversal.
    
      Mr. Thomas M. Sherman and Mr. Herbert C. Sherman, for plaintiff in error.
    
      Mr. Barton Griffith, for defendant in error.
   Jones, J.

The judgment sought to be vacated was confessed by warrant of attorney, and the record discloses no complaint of irregularity in the taking of that judgment. After the term the judgment debtor availed himself of Section 11635 et seq., General Code, by filing his petition to vacate, alleging as his “ground to vacate” that the amount of the judgment “was more than was due the plaintiff.” At the same time he presented as valid defenses to the original action the three several defenses referred to. The method of procedure to be followed is not only defined by the code, but is clarified by the repeated decisions of this court. Lee v. Benedict, 82 Ohio St., 302.

Where a petition to vacate a judgment has been filed by a defendant to the action he must present therewith his defenses thereto. The power of the court extends to an adjudication of the validity of these defenses. If in law valid, should the grounds of vacation be sustained, the issues of fact presented by the defenses are triable to a jury, if a jury issue; or to the court, if triable to the court or a jury be waived. By the provisions of the code the grounds to vacate must be first tried and determined by the court. However, by express provisions of the code, and to preserve liens or securities, the order of modification or vacation of the former judgment is held in abeyance until after the issues joined and presented by the defenses have been finally determined. Section 11637, General Code, and Frazier v. Williams et al., 24 Ohio St., 625.

Plaintiff in error now insists that the issues involved in the defenses should have been tried to a jury. The journal entry discloses that the court found on all the issues joined in favor of the defendant Greene. At that stage of the case the issue involved in the vacation was that the confessed judgment was taken for an amount more than was due. Under Section 11636, General Code, this was triable to the court, which, under the provisions of that section, “must try and decide upon the grounds to vacate,” and determine that issue by the preponderance of the evidence. A jury is not demand-able for that purpose. The preliminary issue is triable to the court. It may occur that one of the defenses presented is of such a character that its adjudication may determine the ground for vacation of the cognovit judgment. A defense alleging partial or full payment of the note, or the taking of judgment for illegal interest, would necessarily involve the preliminary ground for its vacation, since such defense affects the amount due on the note. In such case, establishing the defense would of necessity also establish the ground for the vacation; or, if the second defense here offered were proven, the same result might obtain. The claim of the plaintiff in error in the instant case is that at the time júdgment was taken the defendant had a valid counterclaim, presented by his third defense; which would either reduce or satisfy the amount due on the note, and, since that was a jury issue, it was claimed that the court should have submitted this issue to a jury. But conceding that a counterclaim could have been presented to reduce the amount of the cognovit, the record discloses that the court heard that issue only in so far as it determined the amount due on the note, and found that issue, as well as the issues presented by the first and second defenses, in favor of the defendant Greene, which finding was sustained by the court of appeals. The judgment should, therefore, be affirmed in that aspect of the case.

However, after the testimony was heard, the trial court later definitely held that a counterclaim was not available as a defense to vacate a judgment by confession. In this the court was right.

The facts presented by the third defense constitute a counterclaim which the defendant in the former action could have reserved for an independent suit. Under the code of civil procedure governing the vacation of judgments, the defendant stands in no stronger position than if he had personally confessed judgment. A judgment upon warrant of attorney, when authorized and strictly pursued under Section 11597, General Code, is as potent in its operation as a judgment upon personal confession under the prior section. It could hardly be claimed that if the debtor had appeared personally and confessed judgment upon the note he could thereafter avail himself of a reserved counterclaim for the purpose of vacating that judgment. That is substantially what is proposed here; for the authorization of his attorney effectually entered his personal appearance in lieu of service. If this could be done it would follow as a corollary that a defendant could likewise avail himself of a set-off existing at the time of the confessed judgment, as a basis for its vacation. Whether the judgment has been entered on default or upon confession, it has been held that a counterclaim is not available as a defense to a defendant seeking its vacation. Boas v. Heffron, 40 Ill. App., 652; Wills v. Browning, 96 Ind., 149, and Cresswell v. White, 3 Ind. App., 306.

In the original action, the defendant under favor of Section 11314, General Code, could set forth his defense, counterclaim or set-off. But the favor of the vacation statute, Section 11635, General Code, is granted only to the defendant who has a defense to the action. The distinction is clear. A counterclaim is not a defense. It assumes the existence of the plaintiff's claim, and seeks relief by way of a cross-demand. Notwithstanding the confessed judgment, the judgment debtor retained the right to prosecute his counterclaim in a separate suit.

The judgments of the lower courts are affirmed.

Judgments affirmed.

Nici-iols, C. J., Wanamaker, Newman, Matthias and Johnson, JJ., concur.  