
    No. 111
    JOSEPH v. LAZZARO
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 4915.
    Sept. 29, 1924
    677. JUDGMENT—A judgment must not be vacated at a subsequent term until it is first adjudged that there is a valid defense to the action. If an error in such adjudication is not shown, it will be presumed.
    Published only in Ohio Law Abstract
    Attorneys—Max P. Goodman, for Joseph; Alfred Stuer, for Lazzaro; all of Cleveland.
   SULLIVAN, J.

Epitomized Opinion

Original action in the Municipal Court of Cleveland wherein Horatio Joseph was plaintiff and Frank Lazzaro was defendant. Judgment was rendered for plaintiff and thereafter at a subsequent term, Lazarro filed a petition to vacate the judgment. The court heard evidence of Lazarro regarding the merits of the case and thereupon vacated the judgment. Joseph prosecuted error contending that the court erred in admitting testimony as to the merits prior to the hearing of evidence as to whether the petition stated facts upon which might rest authority for the vacation of the judgment and by vacating the judgment when by statute it hád power only to suspend the operation of the judgment until after a regular hearing of the case. The Court of Appeals held:

1. The proceeding to vacate a judgment is a separate and independent action and the procedure is the same as in any other case. The petition to vacate filed in this case contains the allegations necessary for a cause of action to vacate a judgment, but in the bill of exceptions there is an absence of any proof to support the allegations. The very vitality of the right to vacate the judgment is absent.

2. The original judgment must not be vacated until the hearing had upon the issue of a valid defense and the judgment, if suspended, must rest dormant until the final decision, upon the merits of the controversy. This requirement as to a valid defense was not complied with. If on error such adjudication of a valid defense is not shown it will not be presumed. Judgment reversed and judgment awarded plaintiff in error.  