
    Mount Ida School, Inc., v. Clark.
    (Decided June 15, 1931.)
    
      Messrs. Cannon, Spieth, Taggart, Spring & Annat, for plaintiff in error.
    
      Messrs. Braun, Wohl & Braun, for defendant in error.
   Levine, P. J.

The parties occupy the same relative positions as they did in the common pleas court. The common pleas court sustained the prayer of the petition of defendant, Mrs. Charles Clark, for a vacation of the judgment rendered against her at a previous term, in favor of the Mount Ida School, Inc., and accordingly vacated said judgment.

It appears that the plaintiff filed its petition against the defendant on March 21,1929, praying for a judgment in the sum of $694.62. The action was based upon a written contract between the parties, which provided for the attendance of defendant’s daughter at plaintiff’s school for a period of one year at a tuition fee of $1,000, payable in installments.

The defendant paid part of the tuition, to wit, $400, and judgment was asked for the balance.

No answer was filed by defendant, and accordingly on June 4,1929, the court entered a' judgment by default in favor of the plaintiff and against defendant in the sum of $795.33.

On March 3, 1930, the petition to vacate, which is the present action, was filed. The petition was based on Section 11631, paragraph 4, General Code, providing for the vacation of a judgment after term “for fraud practiced by the successful party in obtaining a judgment or order.”

When the petition came to be heard, it was shown that the defendant ha,d a probable defense, to wit, that the payment of $400 was made under an agreement that the same was to be regarded as payment in full for the entire year’s tuition, because the daughter of the defendant was compelled to sever her connection with the school. To substantiate the claim of fraud, as alleged in the petition, it was claimed by defendant that she called at the office of Mr. Duffy, then of counsel for plaintiff; that she showed him a copy of the petition served upon her in March, 1929, and detailed to him the understanding and agreement between her and plaintiff to the effect that the payment of $400 was to be regarded as payment in full for the entire tuition. She also informed him that she had paid an additional $62.62 under that arrangement.

The defendant testified that Mr. Duffy told her that he would communicate with the attorneys for the plaintiff, and that if there was anything further to be done in the matter he would let her know. In other words, she claimed that due to that conversation she was lulled into a position of security and took no steps to defend herself against the action brought against her.

After a full hearing the court granted the prayer of the petition and ordered a vacation of the judgment, not oil the ground set forth in the petition, but on the ground that there was irregularity in the obtaining of the judgment.

It appears from the record that in order to sustain the plaintiff’s claim in the original case against the defendant for the balance due, a deposition was used in evidence, and no other witnesses were called to substantiate the claim. An examination of the deposition shows that no notice whatsoever was served upon the defendant of the taking of the deposition, or the filing of the same, as required by law.

As we view itj this fact alone is sufficient to establish an allegation that there was irregularity in the obtaining of the judgment. It would have been entirely possible for tbe trial court to have ordered that the petition be made to correspond with the evidence, so that the petition would contain the allegations of irregularity in the obtaining of the judgment.

Since the petition was at no time amended, we are strongly inclined to the view that the better practice would be to amend the petition, substituting the allegation of irregularity for the present allegation of fraud practiced in the obtaining of the judgment, or adding the same to the allegation already found in the petition. Had that been done, we could not, under the law, disturb the judgment rendered in the case.

Under the state of the pleadings, and the evidence introduced thereunder to substantiate the same, the court was powerless to render the judgment which it did.

The trial court wrote a short memorandum setting forth its reasons for granting the prayer of the petition for a vacation of the judgment, stating that it was upon the statutory ground that there was irregularity in the obtaining of the judgment. This the court was powerless to do, unless it ordered under its broad powers an amendment to the petition to make the allegations of same correspond to the evidence. The judgment is therefore reversed and cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Weygandt and Vickery, JJ., concur.  