
    Slater v. Brown.
    (Decided February 1, 1932.)
    
      Mr. William A. Slater, in propria persona.
    
    
      Mr. E. Q. Hammond, for defendant in error.
   Funk, J.

The parties are in this court in the same relation as they were in the court of common pleas, and will be referred to merely as plaintiff and defendant.

The undisputed facts, as appear from the files and the transcript of the docket and journal entries, are as follows:

On April 23, 1930, plaintiff, "William A. Slater, obtained a judgment on warrant of attorney against defendant, James E. Brown.

On June 17, 1930, and during the same term of court at which the judgment was obtained, defendant filed a petition to vacate said judgment, on the ground that it was taken for more than was due, and further alleged that said note was given to the Federal Realty Company without consideration, and was by it transferred to the plaintiff without consideration, and that plaintiff knew at the time he received it from said realty company that there was no consideration given for the same by the original payee.

On September 11, 1930, plaintiff filed an answer to said petition, in which he denied that judgment was taken for more than was due, that the note was transferred to him without consideration, or that he knew of any defect in the note as between the maker and the original payee.

Thereafter the court heard evidence on the issues joined in said petition to vacate and the answer thereto, and on June 9, 1931, the entry was filed wherein the court vacated said judgment and ordered that “said action be restored to the docket” to be proceeded in “according to law,” and that any lien plaintiff may have acquired by virtue of said judgment be preserved pending the final judgment in the action.

On June 5, 1931, being 4 days before the entry was filed suspending said judgment, plaintiff filed a motion for a new trial in said vacation proceedings, which motion for new trial was not overruled until July 20, 1931.

Plaintiff filed his bill of exceptions for a review of said proceedings to vacate the original judgment within 40 days from the overruling of said motion for a new trial, but not within 40 days from the entering of the order suspending the original judgment. No question is raised because the motion was filed before the entry suspending the judgment was filed.

Defendant has filed a motion in this court to strike the bill of exceptions from the files, on the ground that it was not filed within the time prescribed by law, which it is claimed is 40 days from the entering of the order of suspension of the original judgment, and not within 40 days from the overruling of said motion for new trial.

Division III of Title IV of Part Third, General Code, consisting of five chapters, provides for the trial of cases and the manner of applying for a new trial.

General Code, Section 11377, which is in Chapter 1 of said Division III, says that “Issues arise on the pleadings where a fact, or conclusion of law, is maintained by one party and controverted by the other.” Section 11378, in that same chapter, says that “An issue of fact arises: 1. Upon a material allegation in the petition denied by the answer.”

Chapter 5 of said Division III provides how a new trial may be applied for. Section 11575, General Code, of said Chapter 5, defines a new trial to be “a reexamination, in the same court, of an issue of fact.” Section 11576, in said chapter, provides for what causes a new trial may be granted.

Section 11578 provides when the application for new trial must be made, which must be at the same term, except for newly discovered evidence, and within three days after the verdict or decision is rendered, unless unavoidably prevented. ’ ’

Section 11579, of the same chapter, provides that such “application must be made by motion, upon written grounds, filed at the time of making the motion.” Section 11564, which is in Chapter 4 of Division III, provides that a bill of exceptions must be filed “not later than forty days after the overruling of the motion for a new trial, or the decision of the court, when the motion for a new trial is not filed.”

It is apparent from these sections in said Division III of Title 4 of the Code that the motion for new trial, as therein provided, has reference to an issue of fact arising upon pleadings, as distinguished from an issue of fact arising upon a motion or affidavit, or otherwise than upon pleadings.

There is no statutory provision in Ohio fixing the manner or mode by which a party may make application for vacating a judgment during the term at which it was rendered, other than by motion for new trial, which, as before stated, must be in writing and filed within 3 days after the verdict or decision is rendered, as provided in Chapter 5 of Division III of the General Code. However, it is well settled that the common pleas court has inherent power to vacate or suspend a judgment during term, for good cause shown; that a cause for vacating a judgment after term, while not exclusive, would be a good cause for vacating a judgment during the term at which it was rendered; that application may be made for such vacation after the 3 days after the judgment is rendered, and otherwise than by motion for new trial; and that the generally accepted and approved manner of applying for the vacation of a judgment during the term at which it was entered, other than by motion for new trial, is by motion, in which the grounds claimed for such vacation should be succinctly stated, accompanied by an appropriate brief giving the authorities or argument, or both, supporting such motion.

Again, while the proceedings provided in Chapter 6 of Division IV of Title IV of the General Code, for vacating a judgment after the term, have no application to a proceeding for vacating a judgment during the term at which it was rendered, yet, if the party applying for the vacation of a judgment during the term does follow the forms and procedure for vacating a judgment after the term, we can see no harm or objection in so doing. However, when the proceedings for vacating a judgment after the term are followed in an application to vacate a judgment at the same term, it should be treated and considered the same as if it were a motion, as the provisions and procedure for vacating a judgment after the term are not required to be followed in a proceeding to vacate a judgment during the term at which it was rendered.

In the instant case, the plaintiff filed an answer to the petition of the defendant asking for a vacation of the judgment, which, while it did no harm, was unnecessary and added nothing to the objection to the vacation of the judgment. Hence the application for the vacation of the judgment in the instant case, having been made at the same term at which it was rendered, must be considered the same as if it were a motion to vacate said judgment.

There being no statutory provision fixing the manner of making application to vacate a judgment during the term other than by motion for new trial, and it being settled that application may be made during the term at which it was rendered other than by motion for new trial, there is, of course, no statutory provision for filing a motion for new trial in a proceeding to vacate a judgment during the term at which it was entered.

It follows that, if a motion for new trial is not necessary, it is, in event it is filed, a mere nullity, and the situation is the same as where no motion for a new trial is in fact filed, and is thus governed by that rule (General Code, Section 11564) which requires the bill of exceptions to be filed not later than 40 days after the decision of the court is entered.

Furthermore, it will be noted that, where the order of the court of common pleas upon a motion to vacate a judgment entered at the same term at which the motion was filed is reversed by the reviewing court, the case does not go back for a new trial on that question, as it does on motion for new trial where there had been a trial upon issues of fact set forth in pleadings as provided in Division III of Title IV of the General Code, hereinbefore referred to, but that the reviewing court remands the case to the court of common pleas, directing such court to enter the judgment that the reviewing court holds should have been entered, and for further proceedings according to law.

We are therefore clearly of the opinion that a motion for new trial is not necessary to review a decision of the common pleas c’ourt on a motion to vacate a judgment during term, and that the time of filing a bill of exceptions for reviewing such decision is not later than 40 days after the decision of the court is entered.

This position is sustained in the following cases: Acomb v. Clark, 9 C. D., 395, 16 C. C., 662; Stone, Assignee, v. Savings & Banking Co., 8 C. C., 636, 4 C. D., 354; Thomas v. Mangus, 15 C. D., 649, 2 C. C. (N. S.), 554; Cecil v. Grant, 17 C. D., 442, 6 C. C. (N. S.), 65; Minnear v. Holloway, 56 Ohio St., 148, at pages 153 and 154, 46 N. E., 636.

The motion to strike the bill of exceptions from the files is sustained.

There being thus no record before us to show upon what evidence the court based its decision, it is presumed that the court had evidence before it to sustain the decision. The order vacating the original judgment must therefore be affirmed.

Judgment affirmed.

Pardee, P. J., and Washburn, J., concur.  