
    APPEAL — JUDGMENTS—PLEADING—TEIAL
    [Cuyahoga (8th) Circuit Court,
    November 13, 1911.]
    Marvin, Winch and Henry, JJ.
    K. B. Co. v. George Dixon.
    1. Power of- Common Pleas to Consider Petition Filed out of Rule without Order First Made.
    In an action appealed from a justice of the peace to the common pleas court, since the latter court has power to grant leave to file a petition out of rule, it has power to take up and consider it when it is filed out of rule, without first making an order on the subject.
    2. Vendee may Rescind and Recover Amount Paid on Contract.
    When a vendee of personal as well as of real property has a right, in consequence of the conduct of the vendor, to rescind, he may do so and recover back in an action for money had and received, the amount paid upon the contract.
    3. Allegation of Amount Due Being Material and Specific Judgment Rendered for Amount without Proof of Amount.
    When the allegation in a petition of the amount due is material and specific and not, in the sense in which those words are used in Sec. 11329 G. C., an ¿negation of value or damage, the action being on an implied contract for the payment of money only, and within the exception of Sec. 11357 G. C., under the provisions of Sec. 11329 G. C., it must be controverted by answer, and if not, the court, in the exercise of its discretion, has power to render judgment without proof of the amount.
    4. Default Judgment only Rendered when Reached in Regular Order or Special Assignment.
    Section 11592 G. C. authorizing judgment as upon default in certain eases, does not contemplate the entering of a default judgment at any time during the term after the defendant is in default for answer, as provided by Section 11383 G. C., but only when the ease is reached in its order or on special assignment.
    Error.
    
      H. A. Kangesser, for plaintiff in error.
    
      E. W. Dissette, for defendant in error.
   WINCH, J.

Error is predicated in this action npon the refusal of the common pleas court to vacate a default judgment rendered within the term.

The case was originally started in a justice court, where George Dixon sued the K. B. Co. for “money had and received.” He recovered judgment on January 31, 1911. The defendant appealed.

Section 10398 G. C. provides:

“The rule day for filing the petition in the court of common pleas in a case appealed from a justice of the peace shall be the third Saturday after the expiration of the time limited for filing the transcript; and the subsequent pleadings shall be filed within such times thereafter as is provided for the filing thereof in cases commenced in that court after the return day of the summons.”

Dixon should have filed a petition in the common pleas court by February 25; he did not file it until March 30, 1911. The third Saturday after that, when the answer was due, was April 15; the default judgment complained of was taken the following Monday, April 17.

It is first claimed that the judgment is erroneous because the plaintiff did not file his petition so soon as he should have filed it. This contention is disposed of by the ruling in Parker v. Haight, 7 Circ. Dec. 609 (14 R. 548,) which we follow.

It is next claimed that the cause of action stated in the petition varies from that set up in the bill of particulars, and that it was not such an action as permitted a default without the taking of evidence.

Neither of these points is well taken. The petition set forth that the plaintiff had purchased an overcoat of the defendant and paid down four dollars of the purchase price, but the defendant refused to deliver the overcoat, and the plaintiff therefor asked judgment for his four dollars. This was an action for' money had and received.

It was said by Judge Hitchcock in the case of Welsh v. Welsh, 5 Ohio 425, 428:

‘ ‘ The law is well settled that where a vendee has a right in consequence of the conduct of the vendor, to rescind, he may do it and recover back, in an action for money had and received, the amount paid upon the contract. ’ ’

That was an action concerning the sale of real estate, but the rule is the same in the case of the sale of a chattel.

Underlying this action is an implied contract; if another has money which in equity belongs to me, the law implies a contract to pay it to me. This proposition is important, and authorizes the paraphrasing of a paragraph found in Dallas v. Furneau, 25 Ohio St. 635, 638, as follows:

“The' allegation in the petition of the amount due is a material allegation and is not, in the sense in which those words are used in Sec. 11329 G. C., an allegation of value or damage, but is a specific allegation of the amount due, the action being on an implied contract for the payment of money only, and within the exception of Sec. 11357 G. C., and therefore, under the provisions of Sec. 11329 G. C., must be controverted by the answer. In this case, the material allegations of the petition not haying been controverted by the answer, the court, in the exercise of its discretion had power to render the judgment- without requiring proof of the amount.”

This brings us to an application of See. 11592 G. C., -which provides that when all or a part of one or more of . the causes of action set out in a pleading are not put in issue by answer, or otherwise, judgment may be taken, as upon, a default.

If it is claimed that.this section applies only to cases where a part of the cause or causes of action is admitted and part denied, as set forth-in Weaver v. Carnahan, 37 Ohio St.. 363, the answer .is that the statute- has been amended since said decision.

The plaintiff in this case, then, was entitled to judgment, as upon default. That does not-mean that he.was. entitled to a default judgment at any time during -the term after the defendant was in default for answer, as provided in See. 11383 G. C., because his action was not one of those mentioned in that section, but he was entitled to judgment as upon default, when his case was reached in its order or on special assignment, as provided in Sec. 11384 to 11388 G. C. inclusive.

It is claimed that this case was not reached in its order or specially assigned. The transcript does not show a special assignment; but, as there is no bill of exceptions, we do not know that the ease was not reached in its regular order. We must therefore presume that the case was not disposed of in advance of the proper time.

Judgment affirmed.

Marvin and Henry, JJ., concur.  