
    (Pirst Circuit — Hamilton Co., O., Circuit Court —
    Nov. Term, 1894.)
    Before Smith. Swing and Cox, JJ.
    Joseph P. Wellman v. Henry B. Wellman.
    
      Practice under sec. 5354, et post, Rev. Slat., providing for vacation or modification of a judgment by the court making it after the term at which the same was made— When the ground alleged is that there was irregularity in obtaining i', the motion should specify in what the irregularity consisted — If it be that the judgment was rendered before the action stood regularly for trial, it can only be made in the first three days oj the succeeding term— The judgment was vacated in this case on the motion of plaintiff without any specification of irregularity in obtaining it, and without a finding by the court that he had a valid cause of action, which was erroneous.
    
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

It appears from the record in this case that Henry B. Wellman commenced an action of replevin against Joseph P. Wellman before a justice of the peace, and the property described in the affidavit was taken from the possession of the defendant below, and given to the plaintiff. From the judgment in the case, which was in favor of the plaintiff below, the defendant appealed,, the transcript having been filed February 20, 1893. On March 4, 1893, the plaintiff became in default for a petition, and so continued. On March 28th, the defendant filed an answer setting up his ownership of the property, and his right to its possession at the beginning of the suit, and the items and amount of damage sustained by him by reason of the property having been taken from him. On March 29, 1893, January term, the defendant applied to the court for a hearing and assessment of damages, the plaintiff having-failed to prosecute the action to final judgment, and hearing and trial was had, the plaintiff still failing to appear, and a jury being waived (by defendant). The court having heard the evidence, found that at the commencement of the suit the right of property and the right of the possession of the property in controversy, were in defendant, and rendered judgment for the return of the property, and for $156.00, his damages, against the plaintiff.

The next term of the court convened April 3, 1893. On May 1st, twenty-seven days thereafter, a motion was filed to set aside this judgment for irregularity. No statement was made as to what the irregularity consisted of. On May 5th the motion came on for hearing on the record, the bill of exceptions allowed showing that no evidence was heard, and the court set aside the judgment for damages, letting the other part of the judgment stand. Both parties excepted.

The motion was one which evidently must have been filed under sec. 5354, Revised Statutes, as it was one asking the court, at a subsequent term, to vacate or modify its own judgment made at a former term, and must be governed by the provisions of that section. The ground sought to be alleged was irregularity in obtaining the judgment, but no specification as to what the irregularity consisted in was made. This should have been done so the adverse party could meet it. And the statute, section 5359, provides that the court must first try and decide upon the grounds to vacate or modify, before trying or deciding upon the validity of the defense or cause of action. Aud section 5357 provides that proceedings to correct mistake or ii’regularity in obtaining the judgment are to be in motion, but the motion to vacate a judgment because of its rendition before the action regularly stood for trial (which is one of the grounds of irregularity now claimed by counsel) can only be made in the first three days of the succeeding term. This was not done in this case.

R. G. Taylor, for plaintiff in error.

Huntington & Holmes, for defendant in error.

But in another particular the action of the court was erroneous. Section 5360 expressly provides that the judgment is not to be vacated or modified until it is adjudged when plaintiff seeks its vacation that he had a valid cause of action. There was no such adjudication here, and until there was, the court had no right to modify the judgment rendei’ed at the former term. Such judgment of modification will therefore be reversed, with costs.  