
    No 564
    FRASER, et v. PUGH
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1475.
    Decided April 28, 1927.
    (On Re-hearing)
    1223. VACATION — Of Judgments — Even assuming that a motion to vacate judgment was filed after term and that the Municipal Court had no jurisdiction to vacate its own judgment where there is insufficient evidence to establish the right of the Court of Appeals to vacate the judgment by a decree, the action of the lower court will stand.
    First Publication of this Opinion
   BY THE COURT.

The plaintiffs have filed an application for re-hearing. One of the points made in the application for re-hearing is that the motion to vacate the judgment in the Municipal Court was not filed until after the adjournment of the Municipal Court for the the judgment term. It is argued that the Municipal Court did not have jurisdiction to vacate its own judgment after the term and that the plaintiffs’ only remedy was to file an original bill in equity in the Court of Common Pleas. Consequently they claim that the court in the instant case had jurisdiction to review the regularity of the judgment in the Municipal Court.

The answer in the instant case sets up the fact that a motion was filed in the Municipal Court to vacate the judgment of the Municipal Court and that said motion was heard and overruled. There was no reply filed to the answer.

Attorneys — E. G. Lloyd for Fraser, et.; Samuel L. Black for Pugh; all of Columbus.

There were no facts brought to the attention of this court showing that the motion to vacate the judgment of the Municipal Court was filed after term, but assuming that such motion was filed after term and that the Municipal Court had no jurisdiction to vacate its own judgment we are still of opinion that the evidence offered before this court was insufficient to establish the right of this court to vacate the judgment of the Municipal Court by a decree.

The law requires clear and convincing evidence not only as to an irregularity in the taking of the original judgment but as to vigilence in prosecuting the remedies available to plaintiffs against the judgment of the Municipal Court, and also it should clearly appear that the plaintiffs have a defense against the judgment.

We are of opinion that the evidence was not sufficiently clear upon all these issues to justify the granting of relief in the present action. For that reason we believe that the former judgment should be adhered to and that the plaintiffs should be refused relief.

Judgment accordingly.

(Ferneding, Kunkle & Allread, JJ.; concur.)

Note: — Original OA. opinion will be found in 5 Abs. 313.  