
    Horwitz v. Franklin. (Two cases.)
    (Decided November 4, 1929.)
    
      
      Mr. K. H. Guild, for plaintiff in error.
    
      Messrs. Thorman $ Goldman, for defendants in error.
   Vickery, P. J.

These two cases came into this court on petitions in error from the common pleas court of Cuyahoga county, and both grew out of the same accident, and both plaintiffs had the same right to maintain the action, if any right existed.

It seems that the defendant in error Helen Franklin was injured in an accident which was occasioned by the negligence, as it was claimed, of the plaintiff in error, Morris Horwitz, and she brought her action for damages, alleging grounds which made on paper, at least, a liability; and the husband at the same time brought an action for the loss of services of his wife by reason of the injuries growing out of the said accident, and service of summons in each case was properly made upon the plaintiff in error, who was defendant below. The return by the sheriff was properly made, but for some reason, which will appear later, there was no answer or other pleading filed, and after a proper length of time, under the rules of the court and the statutes of Ohio, a default was entered against the defendant in both cases, and under the rules of the common pleas court the case was then sent to a jury room for the assessment of damages; and the damages were assessed in favor of the wife, the injured party, in the sum of $2,000, and in favor of the husband, for loss of service, in the sum of $500, and judgments were entered upon these findings.

During the term of court in which these judgments were rendered the defendant Horwitz undertook to have them vacated, and the reason that he gave for the vacation of the judgments was—and this probably should have appeared by affidavit, but the affidavit is not before us, so we cannot consider it— that he, defendant Horwitz, was insured in the Massachusetts Bonding & Insurance Company, holding a policy which covered a loss of this kind in such insurance company, and that in pursuance with a provision of the policy of the company he immediately sent a copy of the petition, summon a, and so forth, to the home office of the insurance company, and that apparently some one in the insurance company’s office laid them aside and paid no attention to them, apparently thinking that the claim had been made to the local office and that it had been taken care of in Cleveland; but as a matter of fact the insured did as the policy pointed out that he should do when sued, namely, sent the pleadings and other things to the home office, and through some one’s mistake in the home office the suit was not attended to, and the first knowledge that Horwitz had that proper care had not been taken of the matter was when a bill for costs was sent to him. He then notified the insurance company, and apparently it undertook to rectify the mistake by seeking to have the judgments vacated.

It was said in this court that the company had a defense, but there was no answer tendered in the court below setting up a defense, nor was there any offer to prove what the defense was in the court below, but the notion seems to be prevalent that all it had to do during the term was to show that it had a good defense. Now that is where lawyers are mistaken. If service of summons is properly made, and the return is properly made, and judgment by default is properly entered in the absence of the defendant, if it be a case where default judgment can be taken, or by proof of damages in a case like the instant case, then before such judgment can be set aside or vacated, either during or after term, defendants must show some statutory reason why they failed to answer and be present and put in a defense at the time they should have done so. This being done, if they then show that they have a good defense and offer a proper defense and tender proof to the court, saying that, on paper at least, there is a defense, they would be entitled to have a judgment vacated; and if the court should refuse under those circumstances, error might be prosecuted, because there would be an abuse of discretion. But before a court can be charged with having abused his discretion the party claiming it must have brought himself within the statute and show that a right of his had been violated.

Now if defendant here did not set up a statutory ground as to why the answer and defense were not put in at the proper time, he cannot complain because the court does not give him the redress that he wants.

I know it is argued and thought that a court has control over his docket during the term. Nobody is more ready to concede that than I, and had the court granted the motion and set aside the judgment the other side could not have prosecuted error; but when the court refuses, and the party who is injured by the refusal wishes to prosecute error, he must show that a right of his has been violated; that is, he must show that he had a statutory reason why he was not present and why he did not put in his defense, and then he must show that he had a proper defense and must tender that defense, at least by answer, and, the best authorities hold, with evidence to sustain the answer.

In the instant case there w;as no statutory reason shown,' and there was no defense proffered or shown, and just how the court under such circumstances could be guilty of abuse of discretion is a little difficult to understand. In this case the judgment was rendered regularly, and the court did not abuse its discretion, at least it is not shown that it did in this record, and there being no errors in the record we can do no other than affirm the judgment.

Both judgments will therefore be affirmed.

Judgments affirmed.

Sullivan and Levine, JJ., concur.  