
    Horwitz et al. v. Murri.
    
      Judgments—Vacating after term—Sections 11631 and 11637, General Code—Grounds therefor and validity of defense to be first determined—Error to suspend judgment without taking prejudgment steps.
    
    1. In application for vacation of judgment after term, under Sections 11631 and 11637, General Code, court must first determine grounds on which it is sought to suspend or vacate judgment, and, if ground exists, court must determine whether defense is valid or cause of action stated, and, if found in affirmative, judgment should be suspended.
    2. Suspension of judgment without taking prejudgment steps on question of irregularity in entering judgment and on question of validity of defense was prejudicial error, under Section 11637, General Code.
    (Decided January 24, 1927.)
    Error : Court of Appeals for Cuyahoga county.
    
      Messrs. Stanley S Horwite, for plaintiffs in error.
    
      Mr. Geo. S. Meyers, for defendant in error.
   Sullivan, J.

This cause comes into this court on error from the court of common pleas of Cuyahoga county, and the question which is decisive of all other questions is whether the court below committed prejudicial error in suspending judgment on a petition to vacate, after term, without a strict and substantial compliance with the statutes and authorities governing the suspension and vacation after term of judgments of the court of common pleas on any of the grounds enumerated in Section 11631, General Code, and its subdivisions.

It appears from an examination of the record that the court suspended the judgment theretofore rendered on a statutory application to vacate without first deciding the grounds upon which the application was made, and then and thereupon, having found such grounds to exist, proceeded to determine, prior to the suspension or vacation of the judgment, whether there was a valid, as distinguished from a meritorious, defense.

Section 11637, General Code, provides that a judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment was rendered.

In City of Cincinnati v. Archiable, 4 Ohio App., 218, it is held that a trial judge is without discretion, in the face of a rule of court and the provision of the section, to set aside a default judgment, even during the term at which it was rendered, without first requiring the defendant to show a valid defense, and to set it up forthwith before an order is made setting the judgment aside.

While there is some question as to whether the court, of its own volition, by reason of its inherent power over the docket during the term, must follow the requirements of the statute, yet the present record makes that question of small importance, notwithstanding the fact that First National Bank of Dunkirk v. Smith, 102 Ohio St., 120, 130 N. E., 502, lays down the rule that the court of common pleas has an inherent right to set aside its judgments during the term, and this not merely on the grounds for vacating after term, enumerated in Section 11631, General Code, but for any other reason, limited only by a sound discretion.

We reproduce that holding simply as hearing upon the general question, and for the purpose also of emphasizing the necessity of following the statute with respect to the vacation of judgments after term.

In McCullough v. Luteman, 15 Ohio App., 207, the law is laid down that, in an action to vacate a judgment, the court must first decide whether ground exists to vacate, and, if found not to exist, the case ends; it becoming unnecessary to pass on the merits of the answer.

It follows, of course, that, if grounds do exist, then and there it becomes necessary to pass upon the validity of the answer.

In Wellman v. Wellman, 9 C. C., 72, 6 C. D., 61, it was held that a motion to vacate for irregularity should specify the irregularity, and that vacating without such specifying, and without the court’s finding that a valid cause of action exists, is erroneous.

Even if there should be a ground to vacate, there should merely be a suspension or the vacation of the judgment until the validity of the defense is passed upon, as has been decided by many authorities. Watson v. Paine, 25 Ohio St., 340; Lee v. Benedict, 82 Ohio St., 302, 92 N. E., 492.

The safe procedure to follow is outlined in Lee v. Benedict, supra, where it is held that the proper procedure in the case of a motion to vacate a judgment of a previous term for irregularity in obtaining such judgment requires that the court, upon the hearing of such motion, shall first pass upon the ground of irregularity charged, and, if sustained, and the defendant has shown what in law, if established, would be a defense, shall then order the judgment suspended until the cause is tried on its merits. And it is error for the court upon the hearing of such motion to enter a final judgment of vacation.

In the case at bar the court followed this procedure by making an order of suspension instead of an order of vacation.

It follows that, in a proceeding in a case such as the one at bar, the court must first determine the grounds upon which it is sought to suspend or vacate the judgment, and then and thereupon, if such ground has been found to exist, must determine whether the defense is valid; or, in case of a cause of action, whether it is composed of the legal elements which constitute a cause of action. If there is a finding in the affirmative, then it becomes the duty of the court to suspend a judgment.

In the case at bar, if we turn to the entry of November 23, 1925, we find the following:

“To Court: The defendant has leave to answer instanter, and the plaintiff has leave to file an amended petition instanter. Thereupon this cause came on to be heard upon the petition to vacate the judgment in case No. 236118; on consideration whereof the said judgment is suspended, and plaintiff, Alex Murri, is given leave to file an answer by December 12, 1925, in case No. 236118. Judgment is rendered against the plaintiff for the costs herein, to which the defendant excepts. The motion for a new trial is overruled, to which the defendant excepts. Appeal bond is fixed in the sum of $100.”

From an examination it will be observed that, upon the question of irregularity, and also upon the question of valid defense, there were no prejudgment steps necessary in order to pronounce a judgment of suspension.

We think this action of the court is prejudicial" error, and, so holding, the judgment of the lower court is hereby reversed as to the suspension of the judgment.

Judgment reversed.

Levine, P. J., concurs.

Viokery, J., not participating.  