
    No. 766
    MORTON v. DAVAZAC et
    No. 19314.
    Supreme Court
    On motion to certify. Dock.
    Aug. 8, 1925;
    3 Abs. 499.
    677. JUDGMENTS AND DECREES—Vacation of; effect where no valid defense is raised.
   The original action was a tax foreclosure suit brought in the Hamilton Common Pleas against Elizabeth Davazac by the treasurer of Hamilton County for the purpose of collecting delinquent taxes on several pieces of property. This property was offered for sale by the sheriff pursuant to court order and purchased by Phillip Morton as highest and best bidder. A final decree of confirmation and distribution was entered and approved.

Thereafter Davazac and the Home Loan & Building Association filed an application to open up judgment and defend. To this end service of summons was issued to the treasurer of Hamilton County and Morton was made a party defendant, but he was not served with summons. The hearing was continued over until Oct. 1, 1924, and Morton up to this time had not been served; nor had he opportunity to file and pleadings. On March 6, 1925, the Plamilton Common Pleas handed down an opinion ordering Morton’s deed be set aside and all proceedings void. Morton was denied the right to plead or present any evidence or witnesses. The Court of Appeals affirmed the judgment of the lower court.

The case is pending in the Supreme Court on. motion to certify and it is contended:

1. The statutes provide the only remedy by which the court can change its orders or judgments after the term, which the courts below did not observe.

2. Davazac and the Loan Association must proceed under 11632 GC. which procedure was not followed.

Attorneys—Fyffe Chambers for Morton; F. S. Richter; Buchwalter, Headly & Smith, Chas. S. Bell and Jessie Adler for Davazac et.; all of Cincinnati.

3. The court must try and decide upon the grounds to vacate and modify a judgment or order before deciding the validity of the defense as provided in 11636 GC., which it did not do.

_ 4. A judgment shall not be vacated on motion or petition until it is adjudged there is a valid defense to the, action, or if plaintiff seeks it vacation, that there is a valid cause of action, 11637 GC. The court, it is claimed, found no defense to the treasurer’s petition.

5. The court below has entirely disregarded 11633 GC. The title to property which is the subject of the judgment or order sought to be opened, and which, by or in consequence of the judgment or order has passed to a purchaser in good faith, shall not be affected by proceedings under 11632 and 11631 GC.

6. Davazac and the Loan Association do not come into court with clean hands, as they have not paid their taxes for more than ten years.  