
    PATTERSON TOOL CO. v KEMPER, MOORMAN AND FRITCH
    Ohio Appeals, 2nd Dist, Montgomery Co
    Nos. 10241, 10242, 10243.
    Decided May 28, 1931
    H. N. Routzohn, Ozias & Ozias, and W. S. Rhotehamel, Dayton, for Patterson Tool Company.
    Kusworn & Shaman, Dayton, for Kemper, Moorman, & Fritch.
   BY THE COURT

It is fundamental that no judgment can be vacated on either motion or petition until it is adjudged that there is a valid defense to the action in which the judgment was rendered. A copy of the answer which was tendered in the trial court is set forth in the brief of one of counsel. In effect it consists ol a general denial as to the plaintiff’s cause of action and a cross petition asking for affirmative relief.

We have previously had occasion to consider these questions and have held that a general denial in a proffered answer will not justify a trial court in vacating a judgment 'previously rendered. This holding is peculiarly appropriate in the case at bar by reason of the deposition of Mr. Patterson which was submitted both to Judge White, who rendered the default judgment and to Judge Patterson who overruled the motions to vacate.

We are also of opinion that under the state of the record, the cross-petition would not warrant the court in vacating the judgments previously rendered.

We find no prejudicial error in the rulings of the lower court and, as above indicated, are of opinion that the judgments should be sustained for the reasons stated in detail in Judge Patterson’s decision.

It is also fundamental that the sustaining or overruling of a motion to vacate a judgment previously rendered rests largely in the discretion of the trial court. This court would not be justified therefore in reversing the lower court, unless we found that the lower court had abused its discretion in refusing to vacate such judgments. We are clearly of opinion that this court would not be warranted in so holding.

The judgments of the lower court will therefore be affirmed.

ALLREAD, PJ, HORNBECK and KUNKLE, JJ, concur.  